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AMERICAN    CITIZEN   SERIES. 

EDITED   BY 

ALBERT   BUSHNELL   HART,  LL.D. 


CONSTITUTIONAL    LAW    IN    THE 
UNITED  STATES. 

EMLIN   McCLAIN. 


Constitutional  Law  in  the 
United  States 


BY 

EMLIN    McCLAIN,  LL.D. 

Jugttrc  of  tf)e  .Supreme  (Court  of  lotoa ; 

SOMETIME    LECTURER    ON    CONSTITUTIONAL    LAW   AT    THE 
STATE    UNIVERSITY    OF    IOWA 

AUTHOR    OF    "a   TREATISE   ON    THE   CRIMINAL    LAW."      COMPILER   OF 
"a   SELECTION   OF  CASES  ON    CONSTITUTIONAL  LAW." 


Second  Edition 


LONGMANS,  GREEN,  AND  CO. 

FOURTH  AVENUE  &  30TH  STREET,  NEW  YORK 

LONDON,  BOMBAY  AND  CALCUTTA 

191O 


Ni^ 


Copyright,  1904, 
By  Longmans,  Green,  and  Co. 

Copyright,  1910, 
By  Longmans,  Green,  and  Co. 

First  Edition,  February,  1905. 
Reprinted,  November,  1907. 
Second    Edition  thoroughly  revised 
August,  1910. 


THE    UNIVERSITY   PRESS,    CAMBRIDGE,   U.   S.   A, 


TO 
ELLEN    GRIFFITHS    McCLAIN, 

THE    INDULGENT    SOVEREIGN    WHO    FINDS    SOMETHING    TO    COMMEND 

IN    A   BOOK    WHICH    HAS   TEMPORARILY   DIVIDED   WITH    HER 

THE   ALLEGIANCE  OF    HER  WILLING  SUBJECT. 


580859 


Preface  to  Second  Edition, 


In  the  preparation  of  a  book  intended  to  give  to 
students  an  intelligent  conception  of  the  Constitutional 
Law  of  the  United  States,  both  state  and  federal,  it 
is  essential  that  the  historical  development  of  those 
institutions  and  ideas  of  government  which  have  be- 
come characteristic  features  of  our  system  be  noticed, 
that  the  practical  organization  of  the  government  as 
provided  for  be  explained,  and  that  the  interpretation 
which  has  been  put  upon  the  provisions  of  constitu- 
tional instruments  in  the  solution  of  difficult  and  impor- 
tant questions  which  have  arisen  shall  be  stated ;  and  it 
is  especially  important  that  the  proper  relationship 
between  these  various  divisions  of  the  subject  shall  be 
maintained. 

I  have  endeavored,  therefore,  to  make  such  references 
to  English  institutions  and  the  institutions  prevaiHng  in 
the  Colonies  prior  to  independence,  and  to  call  attention 
to  such  of  the  important  reforms  in  government,  for 
which  the  English  people  and  the  Colonists  had  struggled, 
as  may  be  necessary  to  explain  the  nature  of  the  state 
and  federal  governments  provided  for  in  our  written 
constitutions;  for  it  ought  to  be  borne  in  mind  that 
constitutional  law  with  us  involves  the  correct  interpre- 
tation of  formal  instruments  of  government,  framed  to 
meet  supposed  difficulties  and  to  avert  dangers  suggested 


viii  Preface  to  Second  Edition. 

by  experience.  The  language  and  purport  of  these 
instruments  are  never  to  be  lost  sight  of  in  attempting 
either  to  rightly  comprehend  the  system  of  government 
provided  for  or  to  determine  what  is  within  the  scope 
of  constitutional  law,  and  therefore  fundamental,  as  dis- 
tinguished from  that  which  is  the  result  of  mere  prac- 
tice or  statutory  provision,  and  in  its  nature  transitory 
and  mutable.  It  is  true  that  constitutions  may  be 
amended,  and  yet,  whether  we  look  at  the  constitution 
of  any  particular  state  or  at  that  of  the  federal  govern- 
ment, we  discover  that  thus  far  in  our  national  history 
there  has  been  Httle  tendency  toward  any  radical  change 
in  the  form  of  government  first  established.  Our  con- 
stitutional system  may  tlierefore  be  regarded  as  sub- 
stantially permanent,  the  result  of  national  development 
before  it  was  molded  into  final  form,  and  of  constitu- 
tional interpretation  after  such  final  form  was  given  to 
it  by  the  adoption  of  the  constitutions  of  the  thirteen 
original  states  and  the  federal  constitution. 

This  book  is  not,  on  the  one  hand,  a  theoretical 
exposition  of  the  general  principles  of  government,  nor, 
on  the  other,  a  mere  description  of  the  workings  of  the 
state  and  federal  governments  and  their  various  depart- 
ments. But,  as  its  title  imports,  so  far  as  the  accom- 
plishment corresponds  to  the  purpose,  it  is  an  exposition 
of  the  principles  of  an  established  system;  and  it  is  in- 
tended to  afford  to  the  reader  an  explanation  of  the 
important  events  of  the  history  of  our  government,  and 
the  means  of  intelligently  comprehending  the  problems 
constantly  arising,  the  solution  of  which  will  make  our 
constitutional  history  of  the  future.  In  short,  if  the  book 
serves  its  purpose,  it  will  enable  the  person  who  intelli- 


Preface.  ix 

gently  uses  it  to  reach  a  rational  and  correct  conception 
of  the  nature  and  meaning  of  the  constitutions  of  the 
United  States  and  of  his  state,  and  to  understand  the 
essential  features  of  the  governments  provided  for  by 
such  constitutions. 

In  attempting  to  depict  accurately  our  entire  consti- 
tutional system  in  due  proportions  it  has  been  neces- 
sary to  give  a  larger  share  of  attention  than  is  usually 
given  in  works  on  constitutional  law  to  the  nature  and 
functions  of  the  state  governments,  and  to  the  division 
of  powers  between  them  and  the  federal  government. 
The  state  governments  are  still  the  repositories  of  broad 
and  very  important  powers,  and  notwithstanding  the  in- 
creased exercise  of  power  by  the  federal  government, 
there  is  manifested  in  our  recent  constitutional  history  a 
persistent  attachment  to  the  theory  of  local  self-govern- 
ment which  must  not  be  lost  sight  of  in  estimating  the 
present  trend  in  the  development  of  our  institutions. 

I  have  taken  advantage  of  the  opportunity  afforded 
by  a  new  edition  to  make  some  changes  in  the  text  that 
may  perhaps  render  it  clearer  and  more  accurate  and  to 
make  additions  on  points  suggested  by  recent  decisions 
of  the  Supreme  Court  of  the  United  States. 

EMLIN   McCLAIN. 

Iowa  City,  June,  191a 


Contents. 


Page 

PREFACE vii 

SUGGESTIONS     FOR     STUDENTS,     TEACHERS,     AND 

READERS xxiii 

SMALL  REFERENCE   LIBRARY xxvii 

SELECT  BIBLIOGRAPHY  OF  CONSTITUTIONAL  LAW  xxix 

Part  I. 

SYSTEM    OF    GOVERNMENT. 

Chapter 

I.    Constitutional  Government. 

1.  References -j 

2.  Constitutional  Law  as  Related  to  Constitutional  His- 

tory          4 

3.  Features    of   Our    System    of   Government   of   British 

Origin 6 

4.  Popular  Sovereignty ;  Initiative  and  Referendum     .     .  8 

5.  Written  and  Unwritten  Constitutions 11 

6.  Government  under  a  Written  Constitution;  Ultimate 

Sovereignty 16 

7.  Unconstitutionality  of  Legislative  or  Executive  Acts     .       18 

11.    Adoption  and  Amendment  of  Constitutions. 

8.  References 26 

9.  Colonial  Charters ;  Transition  to  State  Governments   .       26 

10.  Authority  on  which  State  Constitutions  Rest   ....       27 

11.  Independence  of  the  States 29 

12.  Union  of  the  States  under  the  Articles  of  Confedera- 

tion    30 

13.  Adoption  of  the  Federal  Constitution 32 

14.  Methods  of  Constitutional  Amendment 34 


xii  Contents. 


Parts  I.,  ll. 


Chapter 

ill.    Nature  of  the   Federal  and   State   Governments; 

Their  Relations.  Page 

15.  References 36 

16.  Division  of  Powers 37 

17.  Rule  of  Construction  as  to  Powers  Granted  by  Federal 

and  State  Constitutions 39 

18.  Implied     Powers    under    the    Federal     Constitution ; 

Liberal    Interpretation 41 

19.  Supremacy   of    Federal    Government    in    Exercise   of 

Powers  Granted 43 

20.  Limitations  in  the  Federal  Constitution  on  State  and 

Federal   Power 44 

21.  Limitations  in  the  Federal  Constitution  for  Protection 

*  of  Personal  Rights 45 

22.  Bills  of  Rights  in  State  and  Federal  Constitutions    .     .       48 

IV.   Relations  of  Departments  of  Government  to  Each 
Other. 

23.  References 54 

24.  Departments  Independent 55 

25.  Independence  of  the  Executive 56 

26.  The  Legislature  Cannot  Exercise  Judicial  Power      .     .  58 

27.  Judges  of  Courts  Cannot  Exercise  Executive  Functions  59 

28.  Impeachment  of  Officers  through  Legislatures      ...  60 

29.  Legislative  Power  may  not  be  Delegated 62 

30.  Checks  and  Balances  in  our  Government 63 


Part  II. 


ORGANIZATION    OF    GOVERNMENT. 

Legislative  Departments. 

31.  References 65 

32.  Legislative  Branches 65 

33.  Legislative   Representation ;    Election    and    Qualifica- 

tion of  Members  ;  Privileges 67 

34.  Organization  and  Methods  of  Legislative  Business    .     .  70 

35.  Methods  of  Enacting  Statutes 70 

36.  Limitations  as  to  Methods  of  Legislation 72 


Parts  II.,  III.  Contents.  xiii 

Chapter 

VI.  Executive  Departments.  Page 

37.  References     . 74 

38.  Organization  of  Executive  Departments 74 

39.  The  State  Executive 75 

40.  Election  of  President 75 

41.  Term  and  Qualifications  of  President ;  Vacancy  in  Office       78 

VII.  Judicial  Departments. 

42.  References 79 

43.  Selection  of  Judges 79 


Part  III. 


LEGISLATION. 

VIII.   State  Legislation. 

44.  References 81 

45.  Nature  of  Legislative  Power 81 

46.  General    Considerations   as  to   Limitations   on    Legis- 

lation       83 

IX.  The  Police  Power. 

47.  References 85 

48.  General  Scope  of  Police  Power 85 

49.  Police  Power  Primarily  in  States 87 

X.  Punishment  of  Crime. 

50.  References 90 

51.  State  Power  as  to  Crimes  in  General 91 

52.  Federal  Jurisdiction  as  to  Crimes 91 

53.  The  Crime  of  Treason 92 

54.  The  Crime  of  Counterfeiting 94 

55.  Piracies;  Crimes  on  the  High  Seas;  Offences  against 

the  Law  of  Nations 95 

56.  Crimes  in  Places  within  Exclusive  Federal  Jurisdiction  96 

57.  Crimes  within  the  Territories 96 

58.  Implied  Power  to  Define  and  Punish  Crimes    ....  97 

59.  Ex  Post  Fado'Lz.ws;   Bills  of  Attainder 97 


xiv  Contents. 


Part  III. 


Chapter 
XL    Public  Property;  The  Eminent  Domain.  pagh 

60.  References 100 

61.  Rights  of  the  Government  to  Acquire  and  Own  Property  100 

62.  The  Power  of  Eminent  Domain 103 

63.  Constitutional  Limitations  on  Eminent  Domain    .     .     .  105 

64.  What  is  a  Public  Purpose 105 

65.  Kind   of   Property   Taken ;    Extent  of  the   Right  Ac- 

quired      109 

66.  Compensation  for  Property  taken  by  Eminent  Domain  112 

67.  Method  of  Procedure  in  Eminent  Domain 117 

XII.    Taxation. 

68.  References 119 

69.  General  Powers  of  Taxation .  120 

70.  State  Power  to  Levy  Taxes 122 

71.  What  is  a  Public  Purpose 124 

72.  What  Property  may  be  Taxed 127 

73.  Taxation  of  Government  Officers  or  Agencies       .     .     .  129 

74.  Due  Process  of  Law  as  to  Taxation ;  Rule  of  Uniformity     131 

75.  Specific  Limitations  on  State  Power  to  Tax     ....  133 

76.  Methods  of  State  Taxation 134 

77.  Federal  Taxation 135 

78.  Duties,  Imposts,  and  Excises 137 

79.  Direct  Taxation  by  Federal  Government ;  Income  Tax  139 

XIII.  Financial  Powders  other  than  Taxation. 

80.  References 143 

81.  Financial  Powers  of  States 143 

82.  Power  of  Federal  Government  as  to  Money      ....  145 

XIV.  Regulation  of  Commerce. 

83.  References 148 

84.  State  Power  over  Commerce  in  General 150 

85.  Necessity  for  Federal  Regulation  of  Commerce    .     .     .  150 

86.  Provisions  of  Federal  Constitution  on  Commerce     .     .  151 

87.  Concurrent  State  Power  over  Commerce 152 

88.  What  is  a  Regulation  of  Commerce 153 

89.  Freedom  of  Commercial  Intercourse  Protected    ,     .     .  154 

90.  State  Restrictions  Invalid  ;  Further  Illustrations  .     .     .  156 

91.  Sale  of  Goods  Brought  into  the  State 158 

92.  State  Taxation  of  Commerce 160 

93.  Federal  Regulations  of  Commerce 161 


Parts  III.,  IV. 


Contents.  xv 


Chapter 

XV,    Corporations:  Creation  and  Regulation.  Pagb 

94.  References 164 

95.  Classes  of  Corporations 165 

96.  Powers  of  States  as  to  Private  Corporations     ....  167 

97.  Public  Corporations  Classified 168 

98.  Power  of  Federal  Government  to  Create  Corporations  170 

XVI.    Other  Enumerated  Powers  of  Congress. 

99.  References 172 

100.    Naturalization 173 

loi.    Bankruptcy 177 

102.  Copyrights  and  Patents 178 

103.  Weights  and  Measures 181 

104.  Post-Offices  and  Post-Roads 181 

105.  Slavery  and  Peonage 182 

106.  Government  of  District  of  Columbia 184 

107.  Legislation  as  to  Places  Ceded  to  Federal  Government  184 

XVII.    War  Powers. 

108.  References 187 

109.  State  Power  as  to  War 187 

no.    State  Militia 188 

111.  Federal  Power  as  to  State  Militia 189 

112.  The  Army  and  Navy 189 

113.  Power  to  Declare  War 190 

114.  Military  Law 191 

115.  Subordination  of  the  Military  to  the  Civil  Authority      .  192 

XVIII.    Implied  Powers  of  the  Federal  Government. 

116.  References 194 

117.  Implied  Powers  Expressly  Given ,.  194 

118.  Restrictions  on  the  Exercise  of  Power  by  Congress  .     .  196 

Part  IV. 

EXECUTIVE   POWER. 

XIX.    General  Nature  of  Executive  Functions. 

119.  References 197 

120.  Historical  View  as  to  the  Executive 197 


xvi                             Contents,                Parts  IV.,  V. 

Chapter 

XX.    Administrative  Functions;  Appointing  and   Par- 
doning Power.  Page 

121.  References 200 

122.  Administration  and  Enforcement  of  Law 200 

123.  Appointment  of  Officers 202 

124.  Pardons 204 

XXI.    Legislative    Functions    of  the   Executive;  Veto 
Power. 

125.  References 206 

126.  Executive  Approval  or  Veto 206 

127.  Exercise  of  Executive  Discretion 207 

128.  Executive  Recommendations  as  to  Legislation      .     .     .  208 

XXII.    Military  Powers. 

129.  References 210 

130.  President  or  State  Executive  as  Commander-in-Chief   .  210 

131.  Protection  of  the  States  against  Invasion  or  Domestic 

Violence 211 

XXIII.    Diplomatic  Relations;  Treaty-Making  Power. 

132.  References 213 

133.  Executive  Authority  in  Diplomacy 213 

134.  Executive  Authority  as  to  Aliens 214 

135.  Treaty  Power 215 

136.  Treaties  are  a  Part  of  the  Law  of  the  Land      ....  216 


Part  V. 

THE   JUDICIARY. 

XXIV.    General  Nature  of  Judicial  Power. 

137.  References 219 

138.  The  Judiciary  in  General 219 

139.  The  Judiciary  of  the  States 221 

140.  The  Law  Administered  in  the  State  Courts      ....  223 

XXV.    Jurisdiction  of  the  Federal  Judiciary. 

141.  References 224 

142.  Necessity  for  Federal  Courts       224 

143.  General  Jurisdiction  of  the  Federal  Courts 226 


Part  V.  Contents.  xvii 

Chapter 

XXVI.    Cases  of  Federal  Jurisdiction.  Pack 

144.  References • 229 

145.  Constitutional  Enumeration 230 

146.  Cases  Arising  under  the  Federal  Constitution,  Laws, 

and  Treaties       ,          230 

147.  Cases  Affecting  Ambassadors,  etc 232 

148.  Admiralty  Cases 233 

149.  Cases  to  which  the  United  States  is  a  Party     ....  234 

150.  Controversies  between  States 235 

151.  Controversies  between  a  State  and  Citizens  of  Another 

State 236 

152.  Controversies  between  Citizens  of  Different  States  .     ..  237 

153.  Controversies  under  Land  Grants  of  Different  States  .  238 

154.  Controversies  between  a  State  and  Foreign  States,  or 

between  Citizens  and  Aliens 239 

XXVII.  The  Exercise  of  Federal  Judicial  Power. 

155.  References 240 

156.  Jurisdiction  by  Original  Suit 240 

157.  Jurisdiction  by  Removal 241 

158.  Jurisdiction  by  Appeal  from  State  to  Federal  Courts    .  242 

XXVIII.   Apportionment  of  Federal  Jurisdiction 

159.  References 244 

160.  The  Federal  Judicial  System 244 

161.  Federal  District  Courts 245 

162.  Federal  Circuit  Courts 245 

163.  Federal  Circuit  Courts  of  Appeals 247 

164.  The  Federal  Supreme  Court 248 

165.  Other  Courts  Created  by  Congress 250 

166.  United  States  Commissioners  and  Magistrates      .     .     .  251 

XXIX.  The  Law  Administered  in  the  Federal  Courts 

167.  References 252 

168.  Distinction  between  Law  and  Equity 252 

169.  The  Common  Law  and  the  Law  of  the  States  ....  252 

170.  Conflicting  Jurisdiction  of  Federal  and  State  Courts     .  254 

171.  Authority  of  the  Judiciary  to  pass  upon  the  Constitu- 

tionality of  Statutes 255 


xviii                          Contents.                      part  VI. 
Part  VI. 

THE   STATES   AND    TERRITORIES. 

Chapter 

XXX.  Relations  of  Federal  and  State  Governments.  Pagb 

172.  References 256 

173.  Relations  of    States  and   Federal   Government   under 

the  Constitution 256 

174.  Guaranty  of  Republican  Government  in  the  States  .     .  258 

175.  Guaranty  against  Invasion  or  Domestic  Violence      .     .  259 

176.  Reconstruction  of  States 260 

XXXI.   Admission  of  States. 

177.  References 262 

178.  Ratification  by  Original  States 262 

179.  Admission  of  New  States  by  Congress 262 

180.  Change  of  State  Boundaries 263 

181.  Reorganization  of  Seceded  States         263 

182.  Steps  for  Admission  of  States 264 

183.  Effect  of  Admission  of  States 264 

XXXII.    Territorial  Governments. 

184.  References 265 

185.  Territorial  Power  of  Congress 265 

186.  The  Constitution  in  the  Territories 266 

XXXIII.  Relation  of  the  States  to  Each  Other. 

187.  References 268 

188.  States  Independent;  Inter-State  Comity 268 

189.  Extradition  of  Criminals 269 

190.  Privileges  and  Immunities  of  State  Citizenship     .     .     .  271 

191.  Faith  and  Credit  to  Acts,  Records,  and  Judgments  of 

the  States 273 


Parts  VII.,  VIII. 


Contents. 


XIX 


Part  VII 


RELATIONS   OF   THE   INDIVIDUAL  TO   THE 
GOVERNMENT. 

Chapter 

XXXIV.  Citizenship.  Pagb 

192.  References 275 

193.  Citizenship  in  the  States 275 

194.  Citizenship  in  the  United  States  by  Birth 277 

195.  Citizenship  in  the  United  States  by  Naturalization   .     .  279 

196.  Privileges  Pertaining  to  United  States  Citizenship    .     .  280 

XXXV.  Political  Privileges. 

197.  References 284 

198.  Federal  and  State  Privileges 284 

199.  The  Fifteenth  Amendment 285 

200.  Suffrage  and  Elections 285 

201.  The  Holding  of  Office 287 

202.  Jury  Service 288 


Part  VIII. 


CIVIL   RIGHTS. 


XXX  VL 

203. 
204. 
205. 


XXXVII. 

206. 
207. 

208. 

209. 

210. 


Guaranties  to  the  Individual. 

References 289 

Natural  Rights  Protected 289 

Classification  of  Individual  Rights  Specially  Guaran- 
teed and  Protected 292 

Religious  Liberty. 

References 295 

Religious  Equality 295 

Taxation  for  the  Support  of  Religion 297 

Sunday  Laws  ;  Blasphemy,  etc 299 

Religious  Belief  no  Defence  for  Violating  Law     .     .     .  300 


XX  Contents. 


Part  VIII. 


Lhapthr 

XXXVIII.   Freedom  of  Speech  and  the  Press.  page 

211.  References ^oi 

212.  Constitutional  Provisions  as  to  Expression  of  Opinion  301 

213.  Slander  and  Libel 302 

214.  Libels  on  Government  and  Injurious  Publications     .     .  303 

215.  Defamation  of  Individuals 304 

216.  Privileged  Publications 305 

XXXIX.    Rights  of  Assembly  and  Petition. 

217.  References 309 

218.  Peaceable  Assembly 309 

219.  Right  to  Petition 310 

XL.    Right  to  Bear  Arms;  Quartering  of  Soldiers. 

220.  References 311 

221.  Keeping  and  Bearing  Arms 311 

222.  The  Quartering  of  Troops 312 

XLI.    Searches  and  Seizures. 

223.  References ,     ....  313 

224.  Search  and  Seizure  without  Warrant 313 

225.  Search  Warrants 314 

XLII.    Guaranties  as  to  Prosecutions  for  Crime. 

226.  References 315 

227.  General  Guaranties  as  to  Prosecutions 315 

228.  Due  Process  of  Law 316 

229.  Presentment  or  Indictment 317 

230.  Capital  or  Otherwise  Infamous  Crimes 318 

231.  Courts-Martial 319 

232.  Twice  in  Jeopardy 319 

233.  Self-Crimination 320 

234.  Speedy  and  Public  Trial 322 

235.  Trial  by  Jury  ;  Venue 322 

236.  Right  to  be  Informed  of  the  Accusation 324 

237.  Right  to  be  Confronted  with  Witnesses 324 

238.  Compulsory  Process  for  Witnesses 326 

239.  Right  to  Assistance  of  Counsel 327 

240.  Excessive  Bail;  Cruel  and  Unusual  Punishments      .     .  327 

241.  Writ  of  Habeas  Corpus 329 

242.  Suspension  of  Habeas  Corpus        331 

243.  Waiver  of  Constitutional  Guaranties 331 


Part  VIII.                    Contents.  xxi 

Chapter 

XLIII.    Trial  by  Jury.  p^^^ 

244.  References 333 

245.  Constitutional  Provisions 333 

246.  Selection  of  a  Jury 334 

247.  Evidence  to  the  Jury  ;  Instructions 336 

24S.    Verdict  of  the  Jury 336 

249.  The  Jury  in  Inferior  Courts 338 

250.  The  Jury  in  Equity  Cases 338 

251.  Re-examination  of  Cases  Tried  by  Jury 339 

252.  Waiver  of  Jury  Trial 340 

253.  Modification  of  Trial  by  Jury 340 

254.  Expediency  of  Provisions  as  to  Jury  Trial 340 

XLIV.    Due  Process  of  Law;  Equal  Protection. 

255.  References 344 

256.  Constitutional  Provisions  as  to  Due  Process  of  Lavir      .  344 

257.  What  is  Due  Process  of  Law 345 

258.  Effect  of  Legislation  on  Due  Process  of  Law   ....  347 

259.  What  Persons  are  Entitled  to  Due  Process  of  Law  .     .  349 

260.  What  are  Property  Rights  Protected  by  Due  Process 

of  Law 350 

261.  Freedom  of  Contract  and  of  Labor 351 

262.  Equal  Protection  of  the  Laws 352 

XLV.    Impairment  of  Contract  Rights. 

263.  References 355 

264.  Constitutional  Provisions  as  to  Contracts 356 

265.  Bankruptcy  and  Legal  Tender  Statutes 357 

266.  What  Kind  of   Contracts  are  Protected  from  Impair- 

ment        358 

267.  Are  Judicial  Decisions  Contracts 359 

268.  Statutory  Privileges  or  Exemptions 360 

269.  Corporate  Charters 361 

XLVI.    Vested  Rights  and  Retroactive  Legislation. 

270.  References 363 

271.  What  Rights  are  Vested 363 

•        272.   Retrospective  Legislation 364 


Xxii  Contents.  Appendix 

Appendix  of  Documents.  „ 

Page 

A.  Extracts  from  Magna  Charta,  1 21 5 369 

B.  The  Bill  of  Rights,  1689 374 

C.  Virginia  Bill  of  Rights,  1776 382 

D.  The  Declaration  of  Independence,  1776 385 

E.  Articles  of  Confederation,  1781 389 

F.  The  Northwest  Ordinance,  1787 398 

G.  Constitution  of  the  United  States,  17S9 405 


INDEX 


425 


SUGGESTIONS    FOR    STUDENTS,    TEACHERS, 
AND  READERS. 

It  seems  desirable  to  impress  upon  the  teacher  who  makes 
use  of  this  book  as  a  foundation  for  a  course  of  instruction,  and 
upon  the  reader  who  resorts  to  it  to  secure  a  general  outline  of 
constitutional  law  or  information  as  to  any  particular  question 
within  the  proper  scope  of  the  subject,  that  there  has  been  no 
attempt  to  make  it  either  easy  or  popular.  It  is  assumed  as 
desirable  that  such  a  book  shall  give  as  careful,  thorough,  and 
accurate  a  statement  as  can  be  made  of  the  established  prin- 
ciples of  constitutional  law.  Some  discrimination  has  been 
necessary  in  selecting  as  topics  for  treatment  those  which  are 
of  general  importance  and  as  illustrations  those  which  involve 
fundamental  principles,  and  the  most  difficult  part  of  the  task 
has  been  to  state  and  illustrate  such  principles  not  only  with 
clearness,  but  with  such  accuracy  that  they  shall  not  be  mis- 
leading when  applied  to  the  solution  of  other  questions  than 
those  which  have  been  specially  considered. 

In  arrangement  of  topics  a  merely  mechanical  order  such  as 
that  which  might  be  indicated  by  the  sequence  of  the  provisions 
in  the  federal  constitution,  or  of  some  state  constitution  which 
could  be  taken  as  a  type,  would  evidently  be  unsatisfactory,  and 
the  author  has  therefore  adopted  a  plan  of  arrangement  accord- 
ing to  his  own  judgment ;  and  the  plan  adopted  must  be  com- 
prehended and  intelligendy  followed  if  the  relation  of  the 
different  parts  of  the  subject-matter  to  each  other  and  the 
proper  connection  for  the  discussion  of  each  part  are  to  be 
understood.  It  is  inevitable  that  subjects  may  suggest  them- 
selves to  the  teacher  or  reader  in  one  connectidn  which  have 


xxiv        Suggestions  for  Students,  Etc. 

been  discussed  elsewhere,  but  the  numerous  brief  cross-refer- 
ences will  furnish  the  necessary  assistance  in  finding  the  desired 
coilateral  matter.  It  is  important  that  these  cross-references  be 
noticed,  especially  by  the  teacher,  in  order  that  the  relations  of 
the  subject-matter  of  the  chapters  be  fully  appreciated  as  pre- 
sented. And  the  teacher  should  have  in  mind  the  necessity  of 
covering  the  whole  ground  and  not  amplifying  any  one  part  to 
the  exclusion  of  another.  It  would  be  a  great  mistake  as 
affecting  the  practical  success  of  the  course  of  instruction  to 
give  so  much  time  to  the  earlier  portions  of  the  book,  relating  to 
the  nature,  organization,  and  exercise  of  power  by  the  different 
departments  of  the  state  and  federal  governments,  that  the  final 
chapters,  explaining  the  relations  of  the  individual  to  these 
governments  and  the  protection  afforded  under  our  constitutions 
to  individual  rights,  should  be  slighted. 

Some  chapters,  especially  those  relating  to  the  jurisdiction  of 
the  federal  courts  and  the  constitutional  guaranties  in  criminal 
procedure,  may  seem  to  be  so  far  technical  as  to  be  uninteresting. 
But  the  exercise  of  judicial  power  is  a  matter  of  constant  public 
interest,  and  an  intelligent  appreciation  of  the  functions  of  the 
judiciary,  and  especially  of  the  relations  between  the  federal 
and  the  state  courts,  is  essential  to  a  sound  understanding  of 
our  governmental  system ;  and  the  teacher  will  find  that  his 
students  have  sufiicient  general  interest  in  the  proceedings  of 
courts  to  enable  them  to  follow  the  explanation  of  the  practical 
application  of  constitutional  principles  in  such  proceedings. 

The  list  of  references  given  in  the  first  section  of  each  chapter 
is  not  intended  to  furnish  authorities  to  support  the  statements 
of  the  text  nor  to  indicate  the  sources  from  which  such  state- 
ments have  been  drawn,  but  to  suggest  suitable  parallel  reading 
and  afford  opportunity  for  further  study  of  the  particular  subject 
of  the  chapter,  or  some  portion  of  it.  But  it  would  be  unwise 
for  either  teacher  or  reader  to  allow  himself  to  be  so  diverted 
from  the  subjects  presented  in  the  text  as  to  lose  sight  of  the 
essential  principles.     It  is  possible  to  extend  collateral  reading 


Suggestions  for  Students,  Etc.         xxv 

beyond  its  proper  scope  and  thereby  fill  the  mind  with  a  con- 
fused mass  of  undigested  information  of  little  benefit  in  under- 
standing constitutional  law  proper,  and  misleading  as  to  the 
deductions  to  be  drawn  from  constitutional  history.  No  effort 
has  been  made  to  present  a  complete  bibliography  of  the  sub- 
ject, for  it  reaches  into  several  independent  fields.  A  few 
standard  books  on  constitutional  law  are  constantly  referred  to, 
and  in  these  general  books  can  readily  be  found  matter  germane 
to  chapters  in  which  no  specific  reference  to  them  is  made. 
Other  references  are  intended  to  facilitate  the  investigation  of 
particular  questions  which  may  be  thought  to  be  of  interest  to 
the  reader  or  student. 

In  this  connection  the  purpose  with  which  references  are 
given  to  judicial  decisions  in  important  cases  should  be  noticed. 
In  works  intended  primarily  for  lawyers  such  cases  are  referred 
to  as  furnishing  the  authoritative  decision  of  specific  questions 
involved,  and  they  are  to  be  understood  and  rightly  applied  only 
by  understanding  the  exact  legal  question  which  the  court  was 
called  upon  to  decide  in  the  case  presented  to  it.  In  this  view 
cases  can  be  satisfactorily  studied  only  by  those  having  a  legal 
education.  But  on  the  other  hand  the  judges  writing  the 
opinions  in  these  cases,  in  explaining  the  reasoning  on  which 
they  rely  in  reaching  their  conclusions,  often  expound  estab- 
lished principles  of  constitutional  law,  and  refer  to  the  history 
of  our  institutions  and  the  theory  of  our  government  as  indicat- 
ing the  interpretation  to  be  given  to  the  various  clauses  of  the 
constitution  itself;  and  their  views  are  entitled  to  as  great 
weight  as  those  of  an  author  discussing  the  same  subject-matter. 
For  the  purposes  of  this  book,  therefore,  cases  are  referred  to  as 
furnishing  such  an  exposition,  rather  than  as  deciding  particular 
points.  The  lawyer  looking  at  a  case  as  furnishing  a  precedent, 
attaches  more  importance  to  the  point  decided  than  to  the 
explanation  of  the  reasons  taken  into  account  by  the  judges  in 
reaching  their  conclusions,  although  he  does,  of  course,  notice 
the  reasoning  for  the  purpose  of  determining  whether  the  con- 


xxvi       Suggestions  for  Students,  Etc. 

elusion  reached  would  be  applicable  in  a  similar  case  which  he 
has  under  consideration.  But  for  the  purposes  of  the  general 
reader  the  reasoning  of  the  judges  is  more  important  than  the 
technical  decision  in  the  case,  for  frequently  the  ultimate  result 
depends  on  the  solution  of  questions  strictly  legal  in  their 
nature.  However,  cases  involving  constitutional  questions 
usually  turn  on  the  interpretation  of  the  language  of  some  pro- 
vision of  the  constitution  itself,  and  are  therefore  often  more 
intelligible  to  the  general  reader  than  are  decisions  on  other 
legal  questions.  Although  the  cases  referred  to  are  usually  those 
decided  by  the  Supreme  Court  of  the  United  States,  it  is  not  to 
be  understood  that  the  expositions  of  constitutional  law  found 
in  the  decisions  of  state  courts  are  not  equally  interesting  and 
valuable.  But  it  is  obvious  that  a  decision  of  the  highest 
judicial  tribunal  of  the  country  is  of  more  general  interest  than 
that  of  a  state  tribunal  relating  to  the  same  subject,  even  when 
the  subject  is  one  as  to  which  the  decision  of  the  federal 
supreme  court  is  not  controlling;  and  the  fact  that  nearly  all 
the  fundamental  guaranties  found  in  the  state  constitutions  are 
also  found  in  some  form  in  the  federal  constitution  has  made  it 
possible  on  nearly  every  question  discussed  to  refer  to  some 
important  case  decided  by  the  Suprerne  ^ourt  of  the  United 
States. 

This  book  will  but  poorly  serve  the  purpose  for  which  it  was 
written  if  it  does  not  impress  upon  teacher  and  reader  the  fact 
that  as  to  fundamental  matters  we  have  a  well-established  and 
fully  matured  constitutional  system  ;  that  the  solution  of  difficult 
questions  about  which  there  may  be  much  controversy  will 
finally  be  reached  by  applying  principles  which  are  well 
settled ;  and  that  the  development  of  our  constitutional  system 
and  the  solution  of  difficult  questions  which  have  heretofore 
arisen  have  not  been  the  result  of  the  triumph  of  any  one  party 
or  faction,  but,  unconsciously,  of  all  the  influences  tending  to 
mold  our  system  of  government  into  its  present  form,  and  that 
their  combined  effect  has  been  determined,  not  by  the  wisdom 


Suggestions  for  Students,  Etc.      xxvii 

and  judgment  of  the  few,  but  by  that  indeterminate  and  im- 
measurable power  which  imparts  vitaHty  to  national  life. 

Finally,  the  teacher  should  bear  in  mind  that  the  ultimate 
purpose  of  any  course  of  instruction  in  constitutional  law  must 
be  to  furnish  to  the  student  guidance  in  the  interpretation  of 
the  constitutions  themselves.  The  student  should  be  constantly 
required  to  recall  the  very  language  of  the  constitutional  instru- 
ments. While  it  is  not  practicable  to  give  the  same  detailed 
attention  to  the  language  of  any  state  constitution,  it  would  be 
advisable  to  require  students  to  provide  themselves  with  copies 
of  the  constitution  of  the  state  in  which  instruction  is  given  and 
to  familiarize  themselves  with  it,  comparing  its  provisions,  so  far 
as  possible,  with  those  of  the  federal  constitution. 

In  the  Appendix  will  be  found  not  only  the  Federal  Con- 
stitution, but  the  English  Bill  of  Rights,  the  Virginia  Bill  of 
Rights,  and  other  important  documents  of  English  and  American 
constitutional  history,  and  students  should  be  encouraged  to 
become  familiar  with  such  constitutional  documents. 

SMALL   REFERENCE   LIBRARY. 

The  following  ,list  indicates  convenient  books  which  the 
teacher  and  student  ought  to  have  access  to  for  purposes  of 
collateral  reading  on  subjects  directly  involved  in  Constitutional 
Law.  The  latest  edition  is  indicated  in  each  case,  although  in 
most  cases  any  edition  will  serve  the  purpose.  Suggestions  for 
a  broader  scope  of  reading  are  found  in  the  Select  Bibli- 
ography and  in  the  lists  of  references  at  the  beginning  of  each 
chapter. 

Taswell-Langmead,  Thomas  Pitt.  English  Constitutional 
History,  from  the  Teutonic  Conquest  to  the  Present  Time.  (5th 
ed.,  1896.) 

Story,  Joseph.  Commentaries  on  the  Constitution  of  the  United 
States.  (2  vols.  5th  ed.  by  Bigelow,  1891,  includes  the  addi- 
tional matter  found  in  the  4th  ed.  by  Cooley.) 


xxviii     Suggestions  for  Students,  Etc. 

Hamilton,  Alexander,  and  Others.  The  Federalist :  A  Collec- 
tion of  Essays  written  in  favor  of  the  New  Constitution.  (Ed. 
by  Lodge,  1888.) 

CooLEY,  Thomas  McIntyre.  A  Treatise  on  the  Constitutional 
Limitations  which  rest  on  the  Legislative  Power  of  the  States 
of  the  American  Uttion.     (7th  ed.  by  Lane,  1903.) 

CoOLEY,  Thomas  McLvtyre.  The  General  Principles  of  Con- 
stitutional Law  in  the  United  States  of  America.  (3d  ed.  by 
McLaughlin,  1898.) 

Hart,  Albert  Bushnell.  Actual  Government  as  applied  tmder 
America?i  Conditions.  (American  Citizen  Series,  1903,  3d 
ed.  1908.) 

McClain,  Emlin.  a  Selection  of  Cases  on  Constitutional  Law. 
(1900,  2d  ed.,  1909.) 

OR 

Thayer,  James  Bradley.  Cases  on  Constitutional  Law,  with 
Notes.     (2  vols.,  1895.) 

Hill,  Mabel.  Liberty  Documents,  with  Contemporary  Expo- 
sition and  Critical  Comments  drawn  from  various  writers. 
(Ed.  by  Hart,  1901.) 


SELECT  BIBLIOGRAPHY   OF   CONSTITUTIONAL 
LAW. 

In  the  following  classified  list  the  standard  books  are  collected 
which  may  properly  be  consulted  as  bearing  on  the  general  sub- 
ject-matter of  constitutional  law  or  history.  The  date  of  the 
first  publication  is  usually  given,  but  the  number  and  date  of  the 
last  edition,  if  there  has  been  more  than  one,  is  not  specially  in- 
dicated, unless  it  is  deemed  important.  Some  works  of  a 
general  character  are  here  mentioned  which  are  not  cited  in  the 
chapter  references.  Monographs  and  articles  in  periodicals  cited 
in  the  chapter  references  as  furnishing  interesting  discussions  on 
special  topics  are  not  included  in  this  list,  but  are  sufficiently 
described  in  the  references  under  the  chapter  headings. 

I.    Constitutional  History. 

The  standard  constitutional  histories  of  England  will  furnish  in- 
formation as  to  the  principles  of  government  which  were  famiUar  to 
the  framers  of  our  state  and  federal  constitutions  and  the  contro- 
versies which  emphasized  or  led  to  the  recognition  of  these  princi- 
ples and  afforded  the  occasion  for  the  insertion  of  particular 
guaranties  in  our  fundamental  instruments  of  government.  The 
various  histories  of  the  United  States  explain  in  greater  or  less 
detail  the  development  of  our  constitutional  system  and  contain 
frequent  references  to  matters  germane  to  constitutional  law. 

Taswell-Langmead,  Thomas  Pitt.  English  ^Constitutional 
History,  from  the  Teutonic  Conquest  to  the  present  time.  (1875  ; 
5th  ed.  1896.) — A  concise  but  comprehensive  history  of  the 
origin  and  development  of  the  English  constitution  intended 
primarily  as  a  text-book  for  students. 

Taylor,  Hannis.  The  Origin  a?id  Growth  of  the  English  Con- 
stitution. (2  vols.,  1889,  1898.)  —  This  work  by  an  American 
author  is   interesting  because   it  treats  of  the  growth  of   the 


XXX  Select   Bibliography. 

English  constitution,  with  particular  reference  to  those  matters 
which  are  important  to  the  students  of  American  constitutional 
law. 

Stubbs,  William,  The  Constitutional  History  of  England  in 
its  Origin  a7id Development.  (3  vols.,  1873-1 878.)  —  A  standard 
work,  relating  to  the  early  history. 

Hallam,  Henry.  Constitutional  History  of  England  from  the 
Accession  of  Henry  VH  to  the  Death  of  George  //.  (2  vols., 
1827,  and  later  eds.)  —  This  is  also  a  standard  work,  covering 
important  topics  of  English  constitutional  history,  but  not  the 
earliest  period  nor  the  period  of  the  controversy  between  the 
American  Colonies  and  the  Crown. 

May,  Sir  Thomas  Erskine.  The  Constitjitional  History  of 
England  Since  the  Accession  of  George  III,  1760-1860.  (2  vols. 
1861,1863.  Later  editions.  3  vols.  1895.) — This  is  substantially 
a  continuation  of  Hallam,  and  covers  the  Colonial  Period. 

HoLST,  Hermann  Eduard  Von.  Constitutional  and  Political 
History  of  the  United  States  (transl.  by  Lalor  and  Mason,  7 
vols,  and  Index  vol.,  1877-1892.) — This  treatise  was  originally 
written  while  its  author  was  a  professor  in  a  German  university. 
He  subsequently  became  professor  of  law  and  history  in  an 
American  university  and  published  a  short  treatise  on  The 
Constitutional  Law  of  the  United  States  (transl.  by  Mason, 
1887),  which  covers  very  accurately  the  principles  of  our  federal 
system  but  is  too  brief  to  be  especially  valuable  for  collateral 
reading.  His  main  historical  treatise  is  largely  devoted  to  the 
discussion  of  political  questions,  especially  the  conflict  as  to  the 
extension  of  slavery. 

Adams,  Henry.  History  of  the  United  States  During  the  Ad- 
ministrations of  fefferson  and  Madison.  (9  vols.,  1 889-1 891.) 
—  Special  attention  is  given  to  constitutional  questions  arising 
during  the  early  period  of  our  national  existence. 

Curtis,  George  Ticknor.  Constitutional  History  of  the 
United  States.  (2  vols.,  1889,1896.) — Volume  I  is  a  new 
edition  of  the  same  2.n\hox''s,  History  of  the  Constitution  (2  vols., 
1854),  and  Volume  II  covers  the  subsequent  development  of 
our  constitutional  system. 


Select  Bibliography.  xxxi 

Hart,  Albert  Bushnell,  editor.  The  American  Nation,  A 
History  from  Original  Materials  by  Associated  Scholars.  (26 
vols,  and  Index  and  Atlas  vols.,  in  progress,  1904.)  —  A  co-opera- 
tive work,  including  in  its  various  volumes  the  beginnings  and 
development  of  our  constitutional  system. 

II.  Formation  and  Adoption  of  Federal  and  State  Constitu- 
tions. 

The  Federalist^  A  Collection  of  Essays  Written  in  Favor  of  the 
New  Constitution.  (1788,  latest  ed.  by  Lodge,  1888.)  —  The 
essays  were  published  separately  as  political  pamphlets  or  con- 
tributions to  periodicals  during  the  period  of  the  discussion  in 
New  York  as  to  the  ratification  of  the  proposed  federal  constitu- 
tion by  that  state.  Their  authorship  was  not  announced  at  the 
time,  but  they  were  in  fact  prepared  by  Alexander  Hamilton, 
John  Jay,  and  James  Madison.  They  contain  a  valuable  con- 
temporaneous exposition  of  the  important  features  of  the  pro- 
posed constitution  and  are  constantly  referred  to  in  works  on 
constitutional  law  and  history  of  the  United  States. 

Bancroft,  George.  History  of  the  Formation  of  the  Constitu- 
tion of  the  United  States.  (2  vols.,  1882,  reprinted  as  Vol. 
VI  of  his  History  of  the  United  States  of  America  (author's  last 
rev.,  6  vols.,  1884-1 885.)  —  This  final  part  of  Bancroft's  History  is 
substantially  an  independent  work  on  the  formation  of  the  Con- 
stitution of  the  United  States  and  its  adoption  in  the  states.  It 
is  popular  in  character,  but  quite  fully  discusses  the  questions  in 
controversy  at  that  time  with  reference  to  the  nature  of  the 
federal  government. 

FiSKE,  John.    The  Critical  Period  of  American  History.   (1888.) 

—  A  popular  account  of  the  political  history  of  the  United 
States  from  the  end  of  the  Revolutionary  War  to  the  adoption  of 
the  federal  constitution,  explaining  the  conditions  under  which 
the  federal  government  was  instituted. 

Jameson,  John  Alexander.  Constitutional  Conventions;  Their 
History^  Powers^  and  Modes  of  Procedure.    (1867  4th  ed.,  1887.) 

—  This  work  was  written  during  the  Reconstruction  Period, 
when  the  powers  of  and  procedure  in  constitutional  conventions 
was  the  subject  of  much  controversy;  but  it  is  fundamental  in 


xxxii  Select  Bibliography. 

treatment,  dealing  with  sovereignty  and  other  subjects  involved  in 
the  making  of  constitutions,  and  contains  valuable  data  as  to  the 
original  state  constitutions  and  the  admission  of  states  by  Con- 
gress, as  well  as  the  constitutional  conventions  held  in  the 
southern  states  during  the  period  of  secession  and  reconstruc- 
tion. 

Jameson,  John  Franklin.  Essays  on  the  Constitutiojial History 
of  the  United  States  in  the  Formative  Period,  1775-1789 .     ( 1 889. ) 

—  An  interesting  discussion  of  controversies  which  arose  during 
the  early  period  of  our  history. 

BoRGEAUD,  Charles.  Adoption  and  Amendment  of  Constitu- 
tions in  Europe  and  America.    (1893.    Transl.  by  Hazen,  1895.) 

—  This  is  a  brief  work  of  comparative  constitutional  law,  dis- 
cussing the  general  exercise  of  the  function  of  constitution 
making. 

POORE,  Ben.  Perley.  The  Federal  and  State  Constitutions, 
Colonial  Charters,  and  Other  Organic  Laws  of  the  l/ftited 
States.  (2  vols.,  1877.)  —  A  compilation  of  matter  valuable  for 
comparison,  much  of  which  is  not  otherwise  readily  accessible. 

III.    Theory  of  Our  Government. 

Wilson,  James.  Lectures  on  Law  (in  his  Works,  t6..  by  Bird 
Wilson,  1804,  last  ed.  by  Andrews,  1896).  —  This  is  a  publica- 
tion of  the  first  course  of  law  lectures  delivered  in  any  American 
university,  but  it  is  so  largely  devoted  to  an  exposition  of  the 
theory  of  government  that  it  is  properly  referred  to  under  this 
head.  The  author  was  one  of  the  delegates  from  Pennsylvania 
to  the  Constitutional  Convention  and  one  of  the  signers  of  the 
Constitution.  Subsequently  he  was  the  able  advocate  of  the 
ratification  of  the  proposed  constitution  in  his  state,  and  later  a 
justice  of  the  supreme  court  of  the  United  States.  What  he 
says  is  of  interest  as  a  contemporaneous  exposition  of  the  theories 
entertained  by  one  who  was  active  and  influential  in  the  Con- 
vention itself  and  in  securing  the  ratification  of  its  work. 

Lieber,  Francis.  Civil  Liberty  and  Self -Government.  (1853; 
3d  ed.  by  Wolsey,  1880.)  Also,  Contributions  to  Political 
Science.     (Vol.  II  of  his  Miscellaneous  Writings,  1881.)  —  Dr. 


Select   Bibliography.  xxxiii 

Lieber  exercised  a  large  influence  in  arousing  interest  in  the 
theory  of  our  government.  His  books  are  popular  in  their 
method  of  treatment. 

Burgess,  John  W.  Political  Science  and  Comparative  Constitu- 
tional Law.  (2  vols.,  1890  )  —  This  is  a  philosophical  treatment 
of  the  theory  of  government  from  a  comparative  standpoint. 

Bateman,  William  O.  Political  and  Constitutional  Law  of  the 
United  States  of  Ame?'ica.  (1876.)  —  One  of  the  first  efforts  to 
present  in  a  methodical  manner  the  theory  of  our  state  and 
federal  systems  as  interdependent. 

Wilson,  Woodrow.  The  State;  Elements  of  Llistorical  and 
Practical  Politics.  (Rev.  ed.,  1900.)  —  An  extremely  thought- 
ful and  discriminating  presentation  of  the  nature  of  the  state 
from  a  philosophical  point  of  view. 

WiLLOUGHBY,  Westel  Woodbury.  The  Nature  of  the  State. 
(1896.)  —  A  philosophical  discussion  of  the  grounds  on  which  the 
exercise  of  authority  by  government  may  be  justified. 

Hurd,  John  Codman.  The  Theory  of  Our  National  Existence, 
(188 1.)  —  An  extremely  theoretical  discussion  of  the  nature  of 
our  government,  especially  with  reference  to  the  doctrine  of 
sovereignty. 

Fisher,  Sidney  George.  Evolution  of  the  Constitution  of  the 
United  States,  (i  897.)  —  An  interesting  account  of  the  develop- 
ment of  our  written  constitutions  from  the  Colonial  Charters. 

IV.    Description  of  Actual  Government  in  the  United 
States. 

Tocqueville,  Alexis  DE.  Democracy  in  America.  (1835-1840. 
Transl.  by  Reeve;  new  ed.  1889.) — This  extremely  interest- 
ing account  of  our  government  as  it  appeared  to  a  foreigner 
when  our  institutions  were  still  but  little  understood,  even  in 
America,  has  been  constantly  referred  to  as  an  illuminating 
description  of  their  actual  operations. 

Bryce,  James.  The  Atnerican  Commonwealth.  (1889.  3d  ed. 
1895;  abridged  by  Macy,  1896.)  — This  account  of  the  actual 
public  hfe  of  the  United  States,  written  after  a  careful  and  in- 
telligent study  of  its  constitutional  and  political  systems,  is 
discriminating  and  very  suggestive.     It  is  popular  in  character. 


xxxiv  Select  Bibliography. 

Hart,  Albert  Bushnell.  Actual  Government  as  Applied 
under  American  Conditions.  (American  Citizen  Series,  1903.) 
—  The  practical  working  out  of  our  constitutional  system  through 
state  and  federal  governments  is  fully  explained,  and  a  large 
amount  of  detailed  information  is  given. 

Macy,  Jesse.  Our  Government.  (Rev.  ed.,  1890.)  —  A  school 
text-book  on  civil  government. 

V.    Technical  "Works  on  Constitutional  Law. 

Story,  Joseph.  Commentaries  on  the  Constitution  of  the  United 
States.  (2  vols.,  1833  ;  4th  ed.  by  Cooley,  5th  ed.  by  Bigelow, 
1891.)  —  This  is  a  fundamental  exposition  of  the  federal  consti- 
tution and  its  early  amendments.  The  author  was  a  professor  in 
the  Harvard  Law  School  and  an  associate  justice  of  the  Supreme 
Court  of  the  United  States.  The  soundness  of  his  views  of  our 
constitutional  system,  so  far  as  it  had  been  developed  in  his 
time,  cannot  be  questioned.  To  some  extent  it  is  also  a  consti- 
tutional history.  Book  I  being  devoted  to  the  Colonies,  Book  II 
to  the  Revolution  and  the  Confederation,  and  the  first  part  of 
Book  III  to  the  origin  and  adoption  of  the  federal  constitution. 
The  fourth  edition,  by  Thomas  M.  Cooley,  contains  additional 
chapters  with  reference  to  the  later  amendments,  which  are 
retained  in  the  last  edition. 

Cooley,  Thomas  M.  A  Treatise  on  the  Constitutional  Limita- 
tions which  rest  upon  the  Legislative  Power  of  the  States  of 
She  American  Union.  (1868;  7th  ed.  by  Lane,  1903.)  —  This 
book  was  the  first  systematic  attempt  to  discuss  the  effect 
of  constitutional  limitations  on  the  exercise  of  power  by  the 
states  ;  and  it  remains  one  of  the  ablest  and  most  instructive 
expositions  of  the  constitutional  system  from  a  legal  standpoint. 
It  is  a  classic,  and  the  views  of  the  author  are  constantly  cited  in 
the  decisions  of  the  courts  as  authoritative  with  reference  to  the 
meaning  and  interpretation  of  the  general  provisions  of  the  state 
and  federal  constitutions,  especially  as  limitations  upon  legisla- 
tive power. 

Tucker  ;  John  Randolph.  The  Constitution  of  the  United 
States  :  A  Critical  Discussion  of  its  Agencies,  Development,  and 
Interpretation.     (2  vols.,  1899.)  —  This   is   the  latest  complete 


Select  Bibliography.  xxxv 

and  systematic  exposition  of  the  federal  constitution  from  a 
legal  standpoint.  The  author  also  deals  fully  with  the  sources 
and  limitations  of  governmental  power,  and  makes  constant  and 
instructive  references  to  the  development  of  our  constitutional 
principles  from  English  sources. 

Hare,  J.  I.  Clark.  American  Constitutional  Law.  (2  vols., 
1889.)  —  A  course  of  lectures,  giving  a  full  account  of  the  history 
of  our  institutions  and  the  theory  of  our  government,  as  well  as 
of  the  important  questions  which  have  been  decided  by  the  courts 
in  the  interpretation  of  the  federal  and  state  constitutions. 

POMEROY,  John  Norton.  An  Introduction  to  the  Constitutional 
Law  of  the  United  States.  (1868  ;  9th  ed.,  1886.)  —  A  concise 
but  fundamentally  sound  and  careful  exposition  of  constitutional 
law  for  students. 

Miller,  Samuel  F.  Lectures  on  the  Constitution  of  the  United 
States.  (1891.)  —  This  short  course  of  lectures  on  constitutional 
law  was  published  after  the  author's  death.  As  containing  in 
concise  form  the  views  of  one  of  the  ablest  of  the  associate 
justices  of  the  supreme  court  of  the  United  States  on  funda- 
mental questions,  many  of  which  had  been  considered  in  opinions 
written  by  him,  this  book  is  of  great  interest ;  but  the  discussions 
are  in  general  too  brief  to  be  cited  with  satisfaction. 

Foster,  Roger.  Constitution  of  the  United  States.  (Vol.  I, 
1895.)  —  The  first  volume  contains  interesting  and  valuable 
matter,  but  the  work  remains  incomplete. 

Kent,  James.  Comtnentaries  on  American  Law.  (4  vols.,  1826- 
1830;  14th  ed.,  1896.)  —  This  standard  treatise  on  law  contains 
matter  which  is  valuable  from  a  constitutional  standpoint, 
especially  the  exposition  in  Part  II  of  the  jurisdiction  of  the 
federal  court. 

Cooley,  Thomas  M.  The  General  Principles  of  Constitutional 
Law  in  the  United  States  of  America.  (1880;  3d  ed.  by 
McLaughlin,  1898.)  —  This  is  a  students'  book,  written  by  the 
eminent  author  of  Constitutional  Limitations^  but  the  scope  is 
broadened  to  cover  the  entire  subject  of  constitutional  law  while 


xxxvi  Select  Bibliography. 

the  exposition  is  condensed  into  rather  brief  and  dry  statements. 
References  are  made  throughout  to  adjudicated  cases. 

Black,  Henry  Campbell.  Hand  Book  of  American  Constitu- 
tional Law.  (1895 ;  2d  ed.,  1897.)  —  A  students'  book.  Covers 
quite  fully  the  usual  ground,  with  citation  of  authorities  on  each 
point. 

Dicey,  A.  V.  Lectures  Introductory  to  the  Study  of  the  Law  of 
the  [British]  Constitution.  (5th  ed.,  1897) — An  analytical  descrip- 
tion of  the  British  constitution  according  to  present  conceptions, 
distinguishing  between  the  parts  which  have  the  character  of  law 
and  those  parts  which  are  only  usage.  The  book  is  interesting 
on  some  questions  as  to  which  a  parallel  may  be  drawn  between 
the  English  and  the  American  constitutional  systems. 

Blackstone,  Sir  William.  Conwientaries  on  the  Laws  of 
England.  (1765-1769.  Last  American  ed.  by  Hammond,  1890, 
with  notes.)  —  This  eminent  and  frequently  quoted  work  on  the 
English  law  is  especially  valuable  as  showing  the  condition  of 
English  jurisprudence  at  the  time  the  Colonies  became  inde- 
pendent. In  Book  I  the  constitution  of  England  is  quite  fully 
described.  An  American  edition  was  printed  (1771,  1772)  almost 
immediately  after  the  completion  of  the  English  edition  and  was 
widely  sold. 

VI.  Judicial  Decisions. 

The  decisions  of  the  highest  courts,  especially  of  the  Supreme 
Court  of  the  United  States,  furnish  very  valuable  material  for  the 
study  of  the  history  of  the  Constitution  and  the  theory  of  govern- 
ment, and  they  furnish  the  only  authoritative  interpretation  of  the 
provisions  of  our  written  constitutions,  so  far  as  the  application  of 
those  provisions  is  to  be  made  in  judicial  tribunals. 

For  the  information  of  those  who  are  not  familiar  with  the  use  of 
the  volumes  of  reported  decisions  of  the  various  courts  it  should  be 
stated  that  references  are  to  particular  cases  by  name,  followed  by 
the  volume  and  page  of  the  report  (the  number  of  the  volume  pre- 
cedes and  the  number  of  the  page  follows  the  name  of  the  series  of 
reports)  wherein  the  case  is  found.  Where  cases  from  state  courts 
are  referred  to  the  state  is  indicated.  The  reports  of  the  Supreme 
Court  of  the  United  States  were  for  years  issued  and  referred  to 
under  the  names  of  the  successive  reporters,  as  follows  :     Dallas 


Select  Bibliography.  xxxvii 


(4  vols.)  ;  Cranch  (9  vols.)  ;  Wheaton  (12  vols.)  ;  Peters  (16  vols.); 
Howard  (24  vols.)  ;  Black  (2  vols.)  ;  Wallace  (23  vols.).  Refer- 
ences to  the  volumes  subsequent  to  those  of  Wallace  are  now 
almost  universally  made  as  though  there  were  a  continuously  num- 
bered series  of  volumes  from  the  beginning,  the  next  volume  after 
23  Wallace  being  cited  as  91  U.  S.  The  cases  in  the  volumes  of 
Dallas,  Cranch,  Wheaton  and  Peters,  and  the  first  eighteen  volumes 
of  Howard,  are  also  published,  somewhat  abridged,  in  a  series  cited 
as  "  Curtis'  Decisions."  The  decisions  of  the  court  are  now  pub- 
lished as  soon  as  they  are  announced,  in  The  Supreme  Court 
Reporter^  a  periodical.  Cases  specially  referred  to  in  the  text  are 
indicated  by  name  only,  but  the  full  citation  for  each  is  given  in 
the  references  for  the  chapter.  Cases  thus  referred  to  in  the  text 
are  also  included  in  the  Index. 

Several  collections  of  cases  have  been  made  which  are  convenient 
for  the  use  of  those  who  have  not  access  to  the  volumes  of  the  re- 
ports, as  follows  : 

McClain,  Emlin.  a  Selection  of  Cases  on  Constitutional  Law. 
(1900,  2d  ed.,  1909.  References  are  applicable  to  either  edition, 
unless  the  second  is  specially  mentioned.) — A  few  of  the  leading 
cases  on  each  branch  of  constitutional  law  are  given,  the  cases 
selected  for  the  most  part  being  those  which  are  suitable  for  the 
use  of  students. 

Thayer,  James  Bradley.  Cases  on  Constitutional  Law,  with 
notes.  (2  vols.,  1895.)  —  Professor  Thayer  has  developedsome 
branches  of  constitutional  law  very  fully  through  cases  from  the 
state  and  federal  courts,  but  has  not  attempted  to  cover  all  the 
topics  which  may  be  considered  as  within  its  proper  scope. 

Boyd,  Carl  Evans.  Cases  on  America7i  Constitutional  Law. 
(1898,  2d  ed.,  1907.)  — This  collection  is  a  very  convenient  one 
as  a  basis  for  a  short  course  of  instruction,  but  many  of  the  cases 
are  so  abridged  as  to  render  it  unsuitable  as  a  book  for  collateral 
reading. 

Dillon,  John  M.  Marshall:  Complete  Constitutional  Decisiofts, 
Annotated.  (1903.)  —  In  many  of  the  most  important  cases  on 
constitutional  law  decided  during  the  early  period  of  our  consti- 


xxxviii  Select  Bibliography. 

tutional  history,  the  opinions  were  written  by  Chief-Justice 
Marshall,  and  this  collection  is  therefore  a  convenient  one  for 
collateral  reading  on  important  questions. 

VII.     Bibliographies. 

The  select  bibliography  of  American  government  given  in  Hart's 
Actual  Government  (American  Citizen  Series,  1903,  3d  ed,,  1908), 
includes  the  principal  authorities  which  can  be  usefully  consulted 
with  reference  to  constitutional  law  and  many  monographs  and 
articles  on  special  topics  of  the  subject.  In  the  same  author's 
Handbook  of  American  History^  Diplomacy  and  Government 
(1908),  there  are  also  extensive  lists  of  references  to  treatises,  ar- 
ticles and  cases  relating  to  different  constitutional  topics.  At  the 
end  of  Fiske's  Critical  Period  of  American  History  there  is  an 
extended  bibliographical  note.  Many  references  are  collected  at 
the  end  of  Vol.  II  of  the  final  edition  of  Curtis'  Constitutional 
History  of  the  United  States,  where  is  to  be  found  a  bibliography 
of  the  Constitution  prepared  in  1896  by  Paul  Leicester  Ford. 


Constitutional  Law  in  the 
United  States. 


Constitutional   Law  in   the 
United   States. 


Part   I. 
System  of  Government. 


CHAPTER   I. 

CONSTITUTIONAL   GOVERNMENT. 

1    References. 

Constitutional  History  :  T.  P.  Taswell-Langmead,  English  Con- 
stitutional History;  Hannis  Taylor,  Origin  and  Growth  of  the  English 
Constitution,  Introd.  and  ch.  i ;  John  Fiske,  Beginnings  of  New  England, 
ch.  i;  J.  R.  Tucker,  Constitution,  chs.  i,  iv  ;  J.  I.  C.  Hare,  Constitutional 
Law,  chs.  i,  iii,  viii ;  J.  F.  Jameson,  Essays  in  Cojistitutional  History; 
James  Wilson,  Lectures  on  Jurisprudence  (Andrew's  ed.). 

Wrii-ten  and  Unwritten  Constitutions:  W.  C.  Morey,  Genesis 
of  a  Written  Constitution  (Am.  Acad,  of  Pol.  Sci.  Annals,  I,  529) ;  Brooks 
Adams,  Embyro  of  a  Commonwealth  {Atlantic  Monthly,  LIV,  610)  ;  J.  H. 
Robinson,  Origitial  and  Derived  Features  of  the  Constitution  (Am.  Acad, 
of  Pol.  Sci.  Annals,  I,  203)  ;  A.  V.  Dicey,  The  Law  of  the  {^British)  Consti- 
tution, Introd.  and  chs.  i,  xv  ;  T.  M.  Cooley,  Comparative  Merits  of  Written 
and  Prescriptive  Constitutions  {Am.  Law  Rev.,  XXIII,  311)  ;  J.  H.  Bur- 
gess, Political  Science  and  Constitutional  Law,  1, 137-154  ;  Emlin  McClain, 
Unwritten  Constitutiojts  in  the  United  States  {Harv.  Law  Rev.  XV,  531)  ; 
S.  G.  Fisher,  Evolution  of  the  Constitution  of  the  United  States  ;  Charles 
Borgeaud,  Adoption  and  Afnendment  of  Constitutiotis. 

Sovereignty:  T.  M.  Cooley,  Constitutional  Limitations^  chs.  iii,  vii; 
J.  A.  Jameson,  Constitutioiial  Conventions.^  ch.  ii  ;  P.  Bliss,  Sovereignty  ;  J. 
A.  Jameson,  National  Sovereignty  {Pol.  Sci.  Quart.  V,  193)  ;  J.  C.  Hard, 

3 


4      ...  /CpristitutibriaL Government.  [§2 

Theory^  of  ^  Our  National  'Eithtenc^)  J.  Dewey,  Austin  s  Theory  of  Sover- 
eignty {Pol.  Sci.  Quart.,  IX,  31)  ;  D.  G.  Ritchie,  Conception  of  Sovereignty 
(Am.  Acad,  of  Pol.  Sci.  Annals,  I,  385)  ;  W.  W.  Willoughby,  Nature  of  the 
State,  ch.  ix;  Henry  vSidgwick.  Elements  of  Politics,  ch.  xxxi;  Theodore 
Woolsey,  Political  Science^  §§  72,  73;  W.  O.  Bateman,  Political  and  Con- 
stitutiotial  Law  of  the  United  States  ;  I.  B.  Richman,  From  John  Atistin  to 
John  C.  Hurd  {Harv.  Law  Rez'.  XIV,  353)  ;  I.  B.  Richman,  Law  and 
Political  Fact  ift  the   United  States  {Atlantic  Monthly,  LXIV,  205). 

Unconstitutionality  of  Statutes  :  Joseph  Story,  Comme7itaries 
on  the  Constitution,  §§  373-456;  T.  M.  Cooley,  Constitutional  Limitations, 
ch.  vii ;  The  Federalist,  No.  78  ;  J.  B.  Thayer,  Origin  and  Scope  of  the 
Ame7'ican  Doctrine  of  Constitutional  Law  {Harv.  Law  Rev.,  VII,  129); 
T.  M.  Cooley,  Federal  Supreme  Court  —  Its  place  in  the  American  Consti- 
tutional System  {Pol.  Sci.  Lectures^  Univ.  of  Mich.,  1889) ;  A.  B.  Hart, 
Actual  Government  (Am.  Citizen  Series),  §§  135-146;  J.  B.  Thayer,  Cases 
on  Constitutional  Law,  I,  notes  pp.  146-154,  157,  175,  183;  Marbury  v. 
Madison  (1803,  i  Cranch,  137;  i  Curtis'  Decisions,  368;  Thayer's  Cases, 
107;  McClain's  Cases,  815;  Boyd's  Cases,  17;  Marshall's  Decisions, 
Dillon's  ed.,  i);  Eakin  v.  Raub  (Pa.  1825,  12  Serg.  &  Rawle,  330;  Thayer's 
Cases,  133)  ;  Opinion  of  the  Justices  {\?>'j2>,  126  Mass.  557  ;  Thayer's  Cases, 
178) ;  In  the  Matter  of  the  Application  of  the  Senate  (1865,  10  Minn.  78 ; 
Thayer's  Cases,  181). 

Initiative  and  Referendum  :  E.  P.  Oberholzer,  Referendum  m 
America;  James  Bryce,  American  Commonwealth,  I,  ch.  xxxix ;  T.  A. 
Sherwood,  Initiative  and  Referendum  tinder  the  United  States  Constitutioti 
(Centr.  Law  Jour.  LVI  (1903),  247);  Kadderly  v.  Portland  (Oregon, 
1903,  44  Oreg.  118). 

2.    Constitutional  Law  as  Related  to  Constitutional  History. 

The  proposition  that  governments  exist  for  the  benefit  of 
the  governed,  and  not  merely  for  the  advantage  of  those  who 
exercise  the  powers  of  government,  is  not  original  with  the 
American  people.  It  had  been  recognized  as  fundamental 
by  many  writers  before  the  Revolution,  and  is  a  necessary  out- 
come of  the  fact  demonstrated  by  human  experience,  that  as 
between  a  single  ruler,  or  a  small  ruling  class,  and  the  mass  of 
the  people  who  are  ruled,  the  great  preponderance  of  power 
and  resource  is  with  the  latter.  This  consideration  has  made 
it  essential  that  all  rulers  or  governing  classes  shall  at  least  pre- 
tend to  administer  government  for  the  benefit  of  the  governed. 
The  tendency  of  civilization  towards  the  betterment  of  the 
people  as  a  whole,  and  the  recognition  by  Christianity  of  the 


§  2]  Constitutional  History.  5 

individual  as  entitled  to  consideration  on  his  own  account  as  a 
human  being,  have  co-operated  with  the  primary  necessity  of 
recognizing  the  welfare  of  the  governed,  in  bringing  about  a 
constant  pressure  for  the  improvement  of  government  and  of 
the  institutions  which  are  supported  or  recognized  by  govern- 
ment. The  result  in  human  history  has  been  to  produce 
changes,  more  or  less  gradual,  in  government  and  institutions; 
so  that  in  any  state  or  nation  a  system  of  government,  and  the 
institutions  existing  under  it,  must  be  regarded  as  the  result  of 
a  development  due  to  the  action  of  this  constant  pressure. 

Human  institutions  must  be  studied  in  the  light  of  their  his- 
torical origins  and  progress.  They  do  not  spring  into  exist- 
ence spontaneously  without  relation  to  that  which  has  gone 
before ;  they  are  not  the  result  of  conscious  creation.  New 
conceptions  or  ideals  on  the  part  of  those  who  have  controlling 
influence  in  shaping  institutions  may  result  in  modifications, 
and  new  circumstances  or  conditions  almost  certainly  lead  to 
changes.  But  changes  will  necessarily  be  gradual,  and  usually 
by  adapting  to  the  new  conditions  that  which  is  in  existence. 
This  will  be  peculiarly  true  under  a  system  of  government  rec- 
ognizing a  distribution  or  division  of  powers  among  several 
departments. 

Revolutions  in  society  or  government  are  usually  found  on 
examination  to  be  more  apparent  than  real.  Changes,  no 
matter  how  radical  or  sudden,  commonly  spring  out  of  causes 
having  a  connected  and  definite  history.  In  a  government  in 
which  a  considerable  portion  of  the  people  exercise  a  control- 
ling influence,  changes  in  form  as  well  as  in  substance  wall  be 
gradual ;  or  if  sudden,  the  institutions  which  most  nearly  affect 
the  general  welfare  will  alter  least  and  most  slowly. 

The  people  of  the  colonies  of  Great  Britain  in  America  who, 
by  declaring  their  independence  and  organizing  state  govern- 
ments and  subsequently  the  federal  government  as  it  now 
exists,  laid  the  foundations  and  determined  the  form  of  our 
present  system,  were  for  the  most  part  of  English  descent,  and 
before  independence  was  declared  were  British  subjects  claim- 
ing rights  which  they  beHeved  themselves  entitled  to  as  such 


6  Constitutional  Government.  [§  3 

subjects.  The  governments  of  the  colonies  derived  their 
authority  from  the  British  crown;  the  institutions  prevail- 
ing in  the  colonies  were  almost  wholly  British  institutions,  the 
history  of  which  is  to  be  traced  in  the  history  of  the  people  of 
Great  Britain ;  and  the  theories  of  government  prevailing  were 
such  as  were  familiar  to  English  people,  modified,  however,  to 
meet  the  new  conditions  under  which  the  colonists  lived.  To 
understand  our  institutions  and  the  principles  of  our  govern- 
ment, constant  recourse  must  be  had  to  the  government  and 
institutions  of  Great  Britain  as  they  existed  just  prior  to  and 
during  the  colonial  period.  The  constitutional  history  of 
Great  Britain  will  therefore  furnish  a  basis  for  the  comprehen- 
sion of  the  constitutional  history  of  the  United  States. 

Constitutional  history  is,  however,  to  be  distinguished  from 
constitutional  law.  By  the  latter  term  is  meant  the  body  of 
rules  and  principles  in  accordance  with  which  the  powers  of  gov- 
ernment are  exercised.  To  understand  the  development  of  those 
rules  and  principles,  and  their  origin,  and  true  nature,  it  is  neces- 
sary to  look  to  constitutional  history ;  but  the  determination,  with 
such  definiteness  as  is  practicable,  of  what  those  rules  and 
principles  actually  are  at  the  present  time,  is  within  the  prov- 
ince of  constitutional  law.  These  rules  and  principles  are  not 
to  be  understood,  however,  without  constant  reference  to  the 
course  of  their  development,  and  constitutional  law  is  therefore 
dependent  upon  constitutional  history. 

3.    Features  of  Our  System  of  Government  of  British 
Origin. 

Although  our  system  of  government  has  many  elements  not 
found  in  the  British  system,  in  the  following  respects  the 
government  and  institutions  of  the  people  of  Great  Britain 
furnish  the  explanation  for  corresponding  characteristics  of  the 
government  and  institutions  of  the  people  of  the  United  States. 
(i)  The  recognition  of  a  considerable  measure  of  local  self- 
government  ;  that  is,  the  right  of  the  people  of  distinct  com- 
munities or  divisions  to  determine  in  some  way  for  themselves 
the  rules  and  regulations  for  their  own  conduct,  so  far  as  the 


§  3]  British  Antecedents.  7 

welfare  of  the  whole  people  is  not  thereby  prejudiced.  (2) 
Participation  in  the  exercise  of  the  powers  of  government  by 
representatives  of  different  communities  or  divisions,  collected 
together  in  some  legislative  body,  as,  for  instance,  in  England 
the  ParHament,  in  the  states  the  legislatures,  and  in  the  United 
States  the  Congress.  Direct  election  of  all  these  representa- 
tives by  popular  vote  is  not  essential  to  the  representative 
character  of  such  a  legislative  body,  although  the  present  ten- 
dency in  both  countries  is  to  entrust  the  selection  of  such 
representatives  to  popular  suffrage.  (3)  Constitutional  limi- 
tations on  the  powers  of  those  who  exercise  public  authority, 
imposed  not  merely  by  the  will  of  those  who  exercise  the 
power  of  government,  but  resting  on  some  higher  sanction, 
and  assumed  to  be  of  such  binding  force  that  they  ought  to  be 
acknowledged  and  respected.  It  is  not  essential,  however,  to 
the  existence  of  constitutional  government  that  these  limita- 
tions rest  on  any  definite  authority,  or  that  they  be  enforcible 
in  any  specific  manner.  (4)  Distribution  of  the  powers  of 
government  among  distinct  departments,  and  their  exercise  by 
different  persons  or  classes  of  persons.  It  was  theoretically 
assumed  by  those  who  attempted  to  state  in  a  philosophical 
way  the  nature  of  the  British  constitution  at  the  time  the  state 
and  federal  governments  were  organized  in  the  United  States, 
that  the  powers  of  the  government  of  Great  Britain  resided  in 
and  were  exercised  by  the  king,  the  Parliament,  and  the 
courts,  and  that  these  three  departments  were  to  a  consider- 
able extent  co-ordinate  and  independent  of  each  other.  The 
subsequent  historical  development  of  the  British  government 
has,  however,  resulted  in  the  subordination  of  the  authority  of 
the  king  to  that  of  Parliament ;  and  in  Parliament  the  House 
of  Lords  has  acknowledged  the  ultimate  authority  of  the  House 
of  Commons,  so  that  at  this  time  there  is  no  longer,  if  there 
ever  was,  a  real  balancing  of  power  among  the  three  so-called 
departments  of  the  British  government.  In  the  United  States, 
however,  the  division  of  powers  among  the  three  departments 
was  actual  in  the  colonial  period,  and  continues,  in  fact,  defi- 
nite in  the  state  and  federal  governments,  where  the  legisla- 


8  Constitutional  Government.  [§  4 

tive,  executive,  and  judicial  functions  are  practically,  as  well  as 
theoretically,  distinct  and  independent. 

4.    Popular  Sovereignty;  Initiative  and  Referendum. 

As  the  result  of  what  were  deemed  unwarranted  assertions 
of  power,  and  unjust  exactions  on  the  part  of  the  crown  and 
Parliament  of  Great  Britain  with  reference  to  the  government 
of  the  American  colonies,  there  was  violent  excitement  among 
the  people  of  the  colonies  prior  to  the  Declaration  of  Inde- 
pendence, leading  to  animated  discussion  of  theories  of  natural 
rights  and  the  powers  of  government.  Many  of  the  ideas  on 
these  subjects  which  were  entertained  and  advocated  by  lead- 
ing men  of  the  time  were  expressed  in  language  current  in 
France  among  critics  of  the  monarchical  system  of  government, 
which  had  existed  there,  since  the  feudal  age,  with  little  direct 
limitation  upon  its  power  or  representation  of  the  popular 
will.  In  France,  the  natural  rights  of  man,  the  doctrines  of 
liberty,  equality,  and  fraternity,  and  the  notion  that  government 
rested  upon  an  implied  social  compact  to  which  the  governed 
were  parties  were  widely  exploited  ;  and  the  resulting  agita- 
tion culminated  in  the  French  Revolution  of  1789,  by  which 
monarchical  institutions  were  overthrown,  and  a  pure  republic 
temporarily  substituted.  These  philosophical  theories  were, 
however,  not  peculiar  to  France.  Some  of  them  were  of 
Enghsh  origin,  and  were  common  among  the  philosophers  of 
the  time  in  England  and  in  Europe ;  but  in  England  they  did 
not,  as  in  France,  result  in  immediate  modification  of  the  gov- 
ernment or  institutions. 

To  the  exploiting  of  so-called  natural  rights,  or  the  rights  of 
man,  and  the  recognition  of  the  social  compact  as  the  founda- 
tion of  governmental  authority  (see  below,  §  204)  may  be 
attributed  the  formal  announcement  in  the  Declaration  of  Inde- 
pendence, and  in  the  constitutions  of  many  of  the  states,  of  the 
doctrine  of  popular  sovereignty,  with  the  corollary  that  those 
who  exercise  the  powers  of  government  are  vested  only  with 
authority  conferred  upon  them  in  some  form  by  the  people. 
The  practical  result  was  that  state  and  federal  constitutions  were 


§  4]  Popular  Sovereignty.  9 

framed  on  the  assumption  that  sovereign  power  is  found  in  a 
general  way  in  the  body  of  the  people  who  are  to  be  governed 
under  such  constitutions  ;  that  the  departments  of  government 
provided  for  thereunder  can  exercise  only  such  general  author- 
ity as  is  given  them  by  the  constitution  ;  that  any  authority 
asserted  in  excess  of  such  granted  powers,  or  in  violation  of 
restrictions  imposed,  is  unconstitutional ;  and  that  acts  per- 
formed in  the  attempt  to  exercise  such  authority  are  ipso  facto 
void. 

It  is  only  so  far,  however,  as  the  theoretical  principles  of 
popular  sovereignty,  announced  in  the  Declaration  of  Inde- 
pendence and  in  the  early  state  constitutions,  are  practically 
recognized  and  protected  by  the  state  and  federal  constitu- 
tions, that  they  have  any  legal  significance.  No  provision  is 
made  in  any  of  these  constitutions  for  the  active  exercise  by 
the  people  of  the  powers  of  sovereignty,  save  as  those  who  may 
be  given  the  elective  franchise  are  authorized  to  express  their 
will  by  the  ballot.  The  voters  have  no  power  except  that  given 
them  under  the  constitution,  and  therefore  the  general  and 
ultimate  powers  of  sovereignty  which  reside  in  the  body  of  the 
people  can  be  practically  exercised  only  by  revolution.  But 
by  giving  to  the  people  a  general  voice  through  their  electors 
in  the  selection  of  representatives,  the  government  is  made 
responsive  to  the  actual  will  of  the  people  to  such  an  extent 
that  occasions  for  revolution  will  be  indeed  rare  j  and  it  is 
not  likely  that  at  any  time  the  will  of  the  people  will  be  so  far 
repressed  by,  or  unrepresented  in  the  government,  that  revolu- 
tion will  be  justifiable  on  moral  grounds.  Whatever  may  be 
the  moral  grounds  for  revolution,  any  change  in  the  form  of 
government  or  interference  with  the  action  of  the  duly  consti- 
tuted authorities,  save  by  a  modification  of  the  fundamental 
law  in  the  method  authorized  by  the  constitution,  will  be  un- 
constitutional. 

There  has  recently  been  developed  in  this  country  a  ten- 
dency to  introduce  the  initiative  and  referendum  in  matters  of 
legislation,  and  the  subject  may  properly  be  referred  to  here 
because  it  illustrates  a  radical  departure  from  English  notions 


lo  Constitutional  Government.  [§4 

as  to  the  functions  of  the  people  in  affairs  of  government. 
The  initiative,  so  called,  is  an  application  by  voters  on  their 
own  motion  to  have  a  proposed  statute  enacted  into  law  by  the 
legislature,  or  submitted  to  vote  of  the  electors  for  the  purpose 
of  determining  whether  it  shall  become  a  law ;  and  the  refer- 
endum is  the  submission  to  the  vote  of  the  electors  of  the  ques- 
tion whether  a  measure  thus  proposed  or  statutes  passed  .by 
the  legislature  shall  become  a  law.  These  methods  of  securing 
or  determining  upon  specific  legislation  have  for  a  long  time 
been  known  and  applied  in  Switzerland.  By  the  Constitu- 
tion of  South  Dakota  (1898),  Oregon  (1902),  and  Okla- 
homa (1907),  provision  is  made  for  legislation  by  the  people, 
through  the  initiative  and  referendum.  The  agitation  in  favor 
of  this  form  of  legislation  is  based  on  the  assumption  that 
the  ultimate  power  resides  in  the  people,  and  that  they 
should  have  the  opportunity  of  acting  directly  through  the 
qualified  body  of  electors  if  they  see  fit  to  do  so,  instead  of 
through  the  legislative  department  of  the  government.  It  is 
apparent,  however,  that  such  an  exercise  of  legislative  power 
on  the  part  of  the  people  is  inconsistent  with  the  general  theory 
of  our  government,  which  involves  action  of  the  people  through 
representatives  and  the  division  of  the  functions  of  government 
among  distinct  departments.  Indeed,  it  is  still  open  to  dis- 
cussion, notwithstanding  the  attempts  to  introduce  the  initiative 
and  referendum,  whether  the  exercise  of  the  powers  of  gov- 
ernment by  the  people  through  the  body  of  the  electors  is  not  in 
violation  of  the  provision  of  the  federal  constitution  (Art.  IV, 
§  4),  that  each  state  shall  have  a  republican  form  of  govern- 
ment, for  it  may  well  be  contended  that  a  republican  form  of 
government  necessarily  involves  the  exercise  of  the  powers 
of  government  by  representative  officers  and  bodies  and  the 
distribution  of  the  powers  of  government  among  distinct  and 
independent  departments. 

The  practical  objections  to  this  form  of  legislation  are  that 
a  small  body  of  chosen  representatives  can  perfect  the  details 
of  legislation  much  more  effectively  than  the  large  body  of 
electors,  and  that  legislative  power  should  be  exercised  under 


§  5]  Initiative  and  Referendum.  1 1 

the  restriction  of  constitutional  limitations,  which  cannot  be 
effectively  applied  if  legislation  rests  directly  upon  the  popular 
will.  The  fundamental  constitutional  rights  of  liberty  and 
property  should  be  as  fully  protected  against  the  will  of  the 
majority  of  the  people  as  they  are  against  the  action  of  the 
departments  of  government.  The  generally  recognized  policy 
of  submitting  local  police  regulations  to  popular  vote  to  deter- 
mine whether  they  shall  go  into  effect  in  particular  localities 
(see  below,  §  29)  is  not  strictly  analogous  to  the  referendum, 
for  in  such  cases,  the  general  statutes  under  which  such  police 
regulations  are  submitted  for  adoption  or  rejection  in  the  par- 
ticular localities  are  adopted  in  the  regular  manner  by  the 
legislative  department,  and  are  valid  as  general  laws,  while 
the  theory  of  the  initiative  and  referendum  is  that  the  statute 
itself  shall  be  proposed  or  enacted  by  the  voters.  It  may  be 
suggested  that  such  a  radical  change  in  our  theory  of  govern- 
ment is  of  doubtful  expediency  and  should  be  considered  in  all 
its  bearings  and  with  a  view  to  all  its  possible  consequences 
before  it  shall  be  accepted. 

5.    "Written  and  Unvrritten  Constitutions. 

The  constitution  of  a  government  is  the  body  or  collection 
of  rules  and  principles  in  accordance  with  which  the  powers  of 
that  government  are  exercised ;  and  a  constitutional  govern- 
ment is  one  the  powers  of  which  are  exercised  in  accordance 
with  rules  and  principles  which  are  generally  accepted  as  bind- 
ing upon  it  and  usually  followed.  In  this  proper  and  usual 
sense  all  the  governments  of  civilized  peoples  are  constitu- 
tional, whether  they  be  monarchical  or  republican.  If  the 
body  of  rules  and  principles  is  not  reduced  to  definite  and 
authoritatively  written  form,  the  constitution  is  said  to  be  un- 
written, as  in  the  familiar  case  of  Great  Britain.  The  body  of 
rules  and  principles  defining  the  nature  of  the  British  govern- 
ment and  prescribing  the  persons  who  exercise  authority  under 
it  and  the  scope  of  such  authority  is  to  some  extent  de- 
clared in  statutes  which  are  a  part  of  the  written  law ;  to  a 
further  extent  is  composed  of  rules  of  law  recognized  by  the 


I  2  Constitutional  Government.  [§  5 

courts,  without  any  written  basis,  and  therefore  a  part  of  the 
unwritten  law ;  and  to  a  still  further  extent  consists  of  conven- 
tions or  customs  which  though  generally  recognized  and  fol- 
lowed, do  not  have  the  force  of  law.  An  example  of  a  statute 
which  is  regarded  as  a  part  of  the  constitution  is  the  Habeas 
Corpus  Act  (1679)  which  declared  more  fully  the  duty  of 
those  holding  persons  under  commitment  for  criminal  offences 
to  make  prompt  response  to  orders  of  the  judges  to  show  the 
nature  of  the  authority  under  which  the  prisoner  was  detained, 
in  order  that  the  lawfulness  of  the  detention  might  be  judi- 
cially inquired  into.  (See  below,  §  241.)  One  of  the  rules  of 
the  unwritten  law  which  is  regarded  as  a  part  of  the  consti- 
tution is  the  principle  that  the  king  can  do  no  wrong,  and 
that  his  ministers,  or  others  pretending  to  act  under  his 
authority,  are  themselves  personally  accountable  for  any  viola- 
tion of  law,  even  though  committed,  as  a  matter  of  fact,  under 
the  king's  command.  A  constitutional  custom  which  has  not 
the  force  of  law  may  be  illustrated  by  the  practice  that  the 
cabinet,  composed  of  various  ministers  acting  as  the  king's 
advisers,  and  administering  particular  offices  or  departments 
of  the  government,  must  act  as  a  body  and  must  resign  when 
they  no  longer  have  the  support  of  Parliament.  Such  a  prac- 
tice is  not  prescribed  by  any  statute,  nor  would  any  court  at- 
tempt to  enforce  it  as  a  part  of  the  unwritten  law.  But  it  is 
fully  recognized  as  one  of  the  principles  in  accordance  with 
which  the  government  of  Great  Britain  is  conducted. 

The  constitution  of  Great  Britain  as  a  whole  is,  therefore, 
unwritten  in  the  sense  that  it  is  not  reduced  to  any  definite 
and  authoritative  statement,  although  as  a  whole  or  in  parts  it 
has  been  expounded  and  explained  by  authors  who  have 
written  on  the  subject,  and  who  have  stated,  with  more  or 
less  fulness  and  accuracy,  its  rules  and  principles.  Some  im- 
portant English  statutes,  besides  the  Habeas  Corpus  Act  al- 
ready referred  to  by  way  of  illustration,  are  constantly  treated 
as  parts  of  the  constitution.  The  most  notable  of  these  is 
Magna  Charta,  which  received  the  royal  approval  of  King 
John  in  12 15,  and,  with  slight  modifications,  was  reapproved 


§  5]  Written  Constitutions.  i  3 

by  many  of  his  successors.  Another  is  the  Petition  of  Right, 
which  was  addressed  by  Parhament  to  Charles  I.  in  1628,  and 
received  his  approval.  And  still  another  is  the  Bill  of  Rights, 
which  regulated  the  descent  of  the  crown,  and  also  declared 
certain  fundamental  rights  of  the  people  as  against  the  royal 
power,  which  was  enacted  by  Parliament  in  1689,  and  received 
the  royal  assent.  These  statutes  are  in  form  not  different  from 
other  statutes  which  are  a  part  of  the  written  law  of  England, 
but  the  nature  of  their  provisions  is  such  as  to  properly  char- 
acterize them  as  important  parts  of  the  English  constitution, 
and  no  attempt  is  ever  made  to  repeal  them.  As  parts  of  the 
written  law,  such  statutes  as  these  are  of  course  binding  on 
the  courts. 

In  the  United  States  the  constitutions  of  the  various  states 
and  of  the  federal  government  are  formally  written  and  rest 
upon  the  will  of  the  people  expressed  directly,  through  their 
chosen  representatives,  and  are  regarded,  therefore,  as  having 
a  higher  authority  than  that  of  statutes  enacted  by  the  legisla- 
tures, created  and  existing  in  accordance  with  the  provisions 
of  the  constitutions,  or  of  executive  acts  authorized  by  the 
constitutions.  These  constitutions  are  not  only  laws  of  the 
states  and  the  federal  government  respectively,  and  therefore 
a  part  of  the  written  law,  but  they  are  superior  to  the  ordinary 
statutory  law.  Constitutional  law  in  the  United  States,  there- 
fore, is  concerned  with  the  history  and  interpretation  of  cer- 
tain formal  written  instruments,  and  not  merely  with  the 
exposition  of  general  and  unformulated  principles  of  govern- 
ment. Strictly  speaking,  constitutional  law,  as  the  term  is 
used  in  this  country,  takes  no  account  of  mere  practices  and 
usages,  no  matter  how  generally  observed,  but  is  based  on 
the  language  of  written  constitutions,  and  takes  into  account 
statutes,  treaties,  executive  acts  and  regulations,  and  the  deci- 
sions of  the  courts  applying  their  provisions  to  specific  cases. 

Although  the  authority  of  a  state  or  federal  government  is 
to  be  determined  by  the  provisions  of  the  written  state  and 
federal  constitutions,  and  not  from  any  mere  general  principles 
or  constitutional  rules  recognized  in  this  country  or  in  Eng- 


14  Constitutional  Government.  [§  5 

land,  nevertheless  a  written  constitution  is,  like  a  statute, 
subject  to  interpretation,  and  must  be  applied  to  new  circum- 
stances and  conditions  by  determining  the  true  intent  and 
purpose  of  its  provisions.  Nowhere  is  there  any  authority, 
however,  to  add  to  those  provisions  or  to  eliminate  any  por- 
tion of  them,  or  to  give  them  a  meaning  not  reasonably 
within  the  intent  with  which  they  were  framed,  save  by  a 
formal  amendment,  as  authorized  in  the  constitutions  them- 
selves. Some  text  writers  and  a  few  judges  have  assumed 
that  there  is  back  of  the  written  constitution  a  general  un- 
written constitution,  somewhat  analogous  to  that  of  Great 
Britain,  serving  as  a  limitation  on  the  exercise  of  the  powers 
of  government  as  defined  by  the  written  instruments.  This 
position  is  untenable  and  dangerous.  If  the  written  constitu- 
tions do  not  express  the  will  of  the  sovereign  people  with 
reference  to  the  distribution  and  limitations  of  the  powers  of 
government,  but  such  will  is  to  be  ascertained  from  other 
sources,  then  we  are  practically  in  the  same  condition  as  the 
people  of  Great  Britain  and  have  no  authoritative  constitution. 
Furthermore,  it  is  a  fundamental  principle  of  our  constitutions 
that  they  have  a  higher  authority  than  the  corresponding 
general  principles  of  the  British  constitution.  Any  act  of  the 
British  Parliament  supersedes  previously  existing  rules  and 
usages,  however  long  established ;  while  our  constitutional 
provisions  are  effective  as  a  definition  of  and  limitation  upon 
the  powers  of  each  branch  of  government,  so  that  acts  of  any 
branch  in  excess  of  the  power  given  to  or  in  violation  of  hmi- 
tations  imposed  upon  it  are  invalid  and  of  no  force.  To  give 
to  general  principles  and  rules  not  found  in  a  written  con- 
stitution the  force  and  effect  of  nullifying  any  action  of  a 
branch  of  the  government  which  is  not  contrary  to  the  written 
terms  of  the  constitution,  would  be  to  assume  that  elsewhere 
than  in  the  constitution-making  power  there  is  a  power  to 
limit  and  define  the  authority  of  branches  of  government 
created  under  the  constitution.  But  no  such  authority  can  be 
found  anywhere  in  our  constitutional  system.  On  examina- 
tion it  will  be  seen  that  what  have  been  referred  to  as  rules 


§  5]  Written  Constitutions.  15 

and  principles  of  an  underlying  unwritten  constitution  are 
either  on  the  one  hand  clearly  implied  in  the  provisions  of 
the  written  constitutions  themselves  and  therefore  a  part  of 
them,  as  binding  and  effectual  as  though  written  in  words ; 
or  on  the  other  hand  are  mere  general  and  well-recognized 
usages  such  as  are  said  to  be  constitutional  under  a  govern- 
ment like  that  of  Great  Britain,  having  no  written  and  authori- 
tative constitution,  but  which  should  not,  where  there  is  an 
authoritative  constitution,  as  with  us,  be  deemed  any  part  of 
constitutional  law. 

Examples  of  such  usages  which  have  been  so  fully  recog- 
nized that  they  might,  if  we  had  no  written  constitution,  be 
said  to  be  a  part  of  the  unwritten  constitution,  are  the  follow- 
ing :  That  no  president  shall  be  elected  for  more  than  two 
successive  terms ;  and  that  the  presidential  electors  shall  vote 
for  the  candidate  of  the  party  on  whose  ticket  they  are 
selected.  But  it  is  evident  that  these  so-called  rules  are  not 
a  part  of  our  constitutional  law.  The  limitation  of  the  presi- 
dency to  two  terms  for  any  one  person  furnishes  a  strong 
argument  against  the  nomination  or  election  of  a  president  for 
a  third  term,  an  argument  which  has  heretofore,  as  in  the 
case  of  President  Grant,  been  sufficiently  potent  to  prevent 
renomination  for  a  third  term.  But  no  one  would  pretend 
that,  if  such  limitation  were  ignored  and  a  president  nominated 
and  elected  for  a  third  term,  he  would  not  be  lawfully  presi- 
dent of  the  United  States  and  have  all  the  authority  of 
president.  No  congress  or  court  would  venture  to  say  that 
his  election  was  for  that  reason  not  valid.  Likewise  there 
have  been  emergencies,  such  as  the  death  before  nomination 
of  a  candidate  for  president,  which  made  it  absolutely  neces- 
sary for  the  electors  chosen  on  a  national  party  ticket  to  cast 
their  votes  for  some  one  not  nominated  on  such  ticket,  as 
in  1872,  when  Horace  Greeley,  the  regular  nominee  of  the 
Democratic  party,  died  before  the  electoral  vote  was  cast,  and 
the  electors  in  states  in  which  the  democratic  ticket  had  a 
majority  of  the  votes  were  compelled  to  exercise  a  discretion 
as  to    the  candidate    for   whom    their   choice  should  be  ex- 


1 6  Constitutional  Government.  [§  6 

pressed.  It  could  not  have  been  contended  for  a  moment 
that  votes  thus  cast  should  not  be  counted  for  the  person 
designated,  although  he  was  not  the  nominee  of  the  party. 
Any  such  general  rules  and  principles,  therefore,  though  they 
may  be  said  in  some  sense  to  be  a  part  of  the  unwritten  con- 
stitution under  our  form  of  government,  are  not  of  equal 
authority  with  the  provisions  of  our  written  constitutions  and 
are  not  in  a  legal  sense  limitations  on  the  powers  of  govern- 
ment. They  are  analogous  to  those  portions  of  the  un- 
written constitution  of  Great  Britain  which  are  of  no  binding 
and  legal  effect,  although  representing  the  general  customs 
and  usages  in  accordance  with  which  that  government  is 
administered. 

In  Great  Britain  no  acts  of  Parliament  regularly  adopted 
can  be  said  to  be  unconstitutional  in  the  sense  of  being  in- 
valid and  without  legal  effect.  It  may  be  urged  as  against  a 
proposed  act  of  Parliament  that  it  will  be  unconstitutional 
because  in  violation  of  the  general  principles  and  usages 
recognized  by  the  unwritten  constitution.  But  when  adopted 
the  statute  in  practical  effect  modifies  the  constitution,  and 
is  fully  operative  and  potent.  In  this  country,  however,  a 
statute  which  is  in  violation  of  the  constitution  is  wholly  invalid 
and  impotent,  and  the  constitution  remains  unaffected. 

6.  Government  under  a  Written  Constitution;   Ultimate 
Sovereignty. 

The  difference  between  the  governmental  system  of  the 
United  States  and  that  of  Great  Britain,  from  a  constitutional 
point  of  view,  is  not,  however,  merely  that  the  principles  of 
constitutional  law  are  in  the  one  case  formally  reduced  to 
writing,  while  in  the  other  they  are  recognized  without  being 
authoritatively  reduced  to  definite  statement.  In  Great 
Britain  the  ultimate  sovereign  power  rests  in  the  government 
and  is  exercised  by  Parliament,  and  no  superior  constitutional 
authority  is  recognized ;  while  in  the  United  States  there  is 
no  unlimited  sovereign  power  in  either  the  federal  or  state 
governments  or  in  any  of  the  branches  thereof,  and  ultimate 


§  6]  Ultimate  Sovereignty.  17 

sovereignty,  if  it  is  to  be  conceived  as  existing  anywhere,  rests 
with  the  people  as  a  whole.  The  powers  of  government  in 
the  United  States  are  derived  by  delegation  in  the  terms  of 
the  federal  and  state  constitutions  from  the  people  by  whom 
such  constitutions  have  been  adopted ;  and  no  department  of 
government  can  lawfully  exceed  the  authority  given  to  it  by 
general  or  specific  grant  in  the  constitution  under  which  it 
exists,  nor  can  it  transcend  the  limitations  imposed  upon  it  by 
such  constitution.  The  real  distinction,  then,  consists  in  the 
fact  that  the  government  of  Great  Britain  is  regarded  as 
possessing  sovereign  power,  while  the  federal  and  state  gov- 
ernments of  the  United  States  possess  only  such  powers  as  are 
generally  or  specifically  delegated  to  them. 

Since  sovereignty  in  the  United  States  does  not  rest  in  the 
government  or  any  division  of  it,  it  may  be  interesting  to  in- 
quire where  it  does  reside,  (i)  The  state  and  federal  con- 
stitutions are  supposed  to  emanate  from  the  body  of  the 
people ;  but  in  fact  the  state  constitutions  have  been  adopted 
in  most  instances  by  popular  vote,  the  assent  of  the  body  of 
the  people  being  expressed  by  the  qualified  electors ;  that  is, 
the  approval  of  a  majority  of  those  voting,  out  of  the  one-fifth 
of  the  population  which  is  entitled  to  vote,  is  the  highest 
formal  approval  obtainable  for  them  from  the  body  of  the 
people,  in  which  ultimate  sovereignty  may  be  supposed  to  rest ; 
while  the  federal  constitution  was  adopted  by  conventions  in 
the  different  states  at  that  time  composing  the  Union,  such 
conventions  being  made  up  of  delegates  selected  by  the 
electors  and  acting  under  authority  derived  from  them.  It 
can  hardly  be  said,  therefore,  that  in  any  practical  sense  ulti- 
mate sovereignty  as  indicating  an  efficient  power  resides  in 
the  body  of  the  people,  for  such  body  does  not  in  any  sense 
or  under  any  circumstances  act  in  its  sovereign  capacity.  (2) 
It  cannot  be  said  that  sovereignty  resides  in  the  voters,  for, 
as  they  are  determined  and  their  action  is  regulated  by  the 
constitutions  and  the  statutes,  they  can  do  nothing  except  as 
authorized  by  such  constitutions.  The  body  of  the  voters  like 
the    officers   whom   they    select   exercise    only   a    delegated 


1 8  Constitutional  Government.  [§  7 

authority.  (3)  It  therefore  appears  that  although  sovereignty, 
in  the  highest  sense  of  the  term,  does  not  reside  elsewhere 
than  in  the  body  of  the  people,  no  constitutional  method  is 
provided  by  which  this  body  as  distinct  from  the  voters  and 
the  officers  selected  by  them,  can  express  its  will.  (4)  Ulti- 
mate sovereignty,  the  term  which  is  used  as  indicating  ul- 
timate power,  may  well  be  said,  however,  to  reside  in  the 
body  of  the  people,  for  by  the  exercise  of  the  power  of  revolu- 
tion any  government  which  does  not  correspond  to  its  ultimate 
will  can  be  overthrown.  An  important  object  to  be  attained 
by  constitutional  government  is  to  enable  the  people  as  a 
whole  eventually  to  secure  such  action  as  is  deemed  desirable 
in  accordance  with  the  orderly  and  well-recognized  methods 
of  procedure  prescribed  in  definite  form,  so  that  the  assertion 
of  the  power  of  revolution,  which  must  necessarily  in  itself  be 
irregular  and  unregulated,  shall  not  be  necessary. 

In  this  country  ultimate  sovereignty  is  a  purely  abstract 
term.  It  cannot  be  actually  exercised  in  accordance  with  any 
method  recognized  by  the  constitutions  or  the  laws  of  the 
state  or  federal  government,  but  in  a  sense  it  is  proper  to 
say  that  federal  and  state  governments  exercise  delegated 
sovereign  power  while  acting  in  accordance  with  and  under 
the  limitations  of  the  constitutions  in  accordance  with  which 
they  are  organized  and  exist.  They  cannot,  however,  be  said 
to  be  sovereign  in  the  full  sense  of  the  term,  for  the  reason 
that  sovereign  power  cannot  in  its  nature  be  limited;  while 
all  the  powers  of  both  federal  and  state  governments  are  in 
fact  restricted  by  their  respective  constitutions. 

7.    Unconstitutionality  of  Legislative  or  Executive  Acts. 

Perhaps  the  most  marked  distinction  between  the  govern- 
mental system  of  Great  Britain  and  that  of  the  United  States, 
is  that  in  Great  Britain  the  courts  cannot  question  the  validity 
of  an  act  of  Parliament  regularly  passed  on  the  ground  that 
it  is  in  violation  of  the  constitution,  while  in  the  United  States 
such  power  is  regularly  and  frequently  exercised  by  the  courts 


§  7]  Unconstitutionality  of  Acts.  1 9 

with  reference  to  state  or  federal  statutes.  The  reasoning  on 
which  this  exercise  of  power  by  the  courts  in  the  United  States 
is  based  is  the  following  :  The  law-making  power  of  the  federal 
or  of  a  state  government  exercises  only  delegated  authority, 
and  it  cannot  transcend  constitutional  limitations  imposed  upon 
it ;  and  therefore  its  acts,  when  without  authority  or  in  viola- 
tion of  constitutional  limitation,  are  invalid.  If  such  a  statute 
were  to  be  regarded  by  the  courts  as  a  part  of  the  law,  bind- 
ing upon  them,  then  constitutional  limitations,  transgressed  by 
such  a  statute,  would  be  of  no  validity  whatever.  Consequently 
when  in  any  case  before  a  court  it  becomes  necessary  to  deter- 
mine what  the  law  is,  and  a  statute  is  relied  upon  as  being 
an  authoritative  statement  of  the  law,  the  court  must  decide 
whether  or  not  the  statute  is  valid.  This  reasoning  applies 
with  equal  force  to  any  action  of  the  executive  department 
which  is  without  authority  or  in  violation  of  constitutional 
restrictions.  This  peculiar  characteristic  of  our  form  of  gov- 
ernment, which  results  in  giving  to  the  courts  a  much  more 
important  function  than  any  exercised  by  the  courts  in  other 
countries,  results,  then  (i)  from  the  conception  of  ultimate 
sovereignty  as  residing  in  the  people  and  not  in  the  govern- 
ment; (2)  from  the  conception  of  the  government  as  exercis- 
ing only  delegated  and  limited  powers;  and  (3)  from  the 
division  of  the  powers  of  government  among  three  separate 
departments,  each  of  which  has  authority  only  so  far  as  the 
powers  of  government  provided  for  in  the  constitution  are 
conferred  upon  it.  The  courts  are  required  under  our  form 
of  government  to  exercise  such  power  in  order  to  arrive  at  a 
proper  basis  for  deciding  cases  before  them. 

It  is  to  be  observed  that  this  function  of  the  courts  is  not 
the  primary  or  the  principal  purpose  of  their  creation  and 
recognition  as  a  department  of  government.  Courts  are  created 
primarily  to  decide  legal  controversies ;  but  in  deciding  such 
controversies  it  is  necessary  for  them  to  determine  what  is  the 
law  as  applicable  to  the  particular  case,  and  as  incidental  to 
the  exercise  of  this  function  they  may  have  to  decide  whether 
a  statute  or  an  executive  act  relied  upon  by  one  party  or  the 


20  Constitutional  Government.  [§  7 

other  is  valid,  or  whether,  on  the  other  hand,  it  is  invahd  be- 
cause in  excess  of  the  power  conferred  upon  the  department 
which  has  attempted  to  act,  or  is  in  violation  of  some  con- 
stitutional provision  or  limitation.  It  is  a  function  of  the  law- 
making power  to  determine  prospectively  what  shall  be  the 
law,  and  to  express  that  determination  by  adding  to  or  modify- 
ing or  repealing  the  existing  law  by  statutes  taking  effect  from 
the  time  of  their  enactment.  (As  to  ex  post  facto  and  other 
retrospective  laws,  see  below,  §§  59,  272.)  The  courts,  on  the 
other  hand,  decide  cases  submitted  to  them  with  reference  to 
what  the  law  was  at  the  time  the  controversies  to  be  deter- 
mined arose,  by  which  the  rights  of  parties  to  such  contro- 
versies are  to  be  adjudged.  Their  principal  concern  is  as  to 
what  is,  or  rather  what  has  been,  the  law  up  to  the  time  of 
the  decision,  not  what  shall  be  the  law  for  future  cases. 

It  is  true  that,  having  decided  what  the  law  is,  a  court  will 
be  likely  in  future  cases  to  adhere  to  the  views  expressed  in 
previous  decisions,  and  the  desirability  of  having  the  rules  of 
law  on  which  persons  may  act  and  rely  stable  and  settled  will 
incline  the  courts  to  adhere  to  their  former  decisions,  which 
will  be  regarded  as  precedents  in  subsequent  cases.  But  the  act 
of  the  court  in  determining  what  the  law  is  in  a  given  case  is 
not  primarily  for  the  purpose  of  ascertaining  it  for  future  cases, 
but  in  order  that  the  case  before  it  may  be  rightly  decided. 
It  is  erroneous,  therefore,  to  speak  generally  of  the  judicial 
department  as  having  power  to  interpret  or  declare  the  law 
as  though  it  were  especially  created  for  the  purpose  of  inter- 
preting the  constitution  and  the  acts  of  the  other  departments 
of  the  government  in  order  that  the  people  shall  be  advised  as 
to  what  they  mean.  It  is  assumed  rather  that  the  constitution 
and  the  law,  both  written  and  unwritten,  are  known,  and  that 
persons  whose  controversies  come  before  the  courts  have 
acted  with  reference  to  the  law  as  it  existed  and  are  bound 
to  knowledge  thereof;  and  the  courts,  therefore,  on  that  basis 
determine  only  retrospectively  what  law  applies  in  the  settle- 
ment of  controversies  which  have  already  arisen.  Nevertheless, 
as  a  result  of  such  determination,  persons  may  in  the  future 


§7]  Unconstitutionality  of  Acts.  2i 

be  guided  and  greatly  assisted  in  following  the  law,  by  having 
reference  to  what  has  already  been  decided  in  previous  cases. 

The  preceding  considerations  lead  to  some  other  important 
conclusions  as  to  the  proper  province  of  the  courts,  in  passing 
upon  the  constitutionality  of  statutes.  First,  it  will  always 
be  borne  in  mind  by  a  court  that  the  legislative  department, 
on  whose  authority  the  statute  rests,  is  a  co-ordinate  branch 
with  the  judicial ;  that  there  is  no  superiority  as  between  them  ; 
that  each  is  vested  with  power  and  discretion  within  the  scope 
prescribed  for  it  by  the  constitution ;  and  therefore  that  an 
act  of  the  legislative  department  is  entitled  to  every  presump- 
tion in  its  favor,  and  that  to  question  its  validity  is  the 
exercise  of  a  very  delicate  and  extraordinary  power,  to  be 
resorted  to  only  in  the  last  extremity  and  when  the  rights  of 
the  parties  to  the  litigation  are  found  necessarily  to  depend 
upon  its  construction.  The  courts  then,  instead  of  being 
zealous  to  interpret  and  determine  the  validity  of  statutes  with 
respect  to  their  constitutionality,  in  order  that  the  people  may 
know  and  act  accordingly,  will  discharge  such  duty  with  great 
reluctance  and  reserve,  the  importance  of  making  the  law  clear 
for  future  cases  being  subordinate  to  that  of  leaving  the  legis- 
lative department  free  in  the  exercise  of  its  constitutional  pre- 
rogative of  law  making.  Moreover,  the  courts  will  entertain 
every  presumption  in  favor  of  the  validity  of  a  statute  called 
in  question,  and  declare  it  to  be  invalid  on  constitutional 
grounds  only  where  it  is  plainly  and  clearly  in  conflict  with 
the  constitution.  They  will  not  pass  upon  such  a  question 
save  in  a  case  in  which  it  is  necessary  to  do  so  in  order  to 
adjudicate  the  real  and  substantial  rights  of  the  parties  in  that 
case ;  and  they  will  avoid,  if  practicable,  considering  such  a 
question  except  after  full  argument  and  a  consultation  in  which 
all  the  judges  of  the  court  are  present. 

Second,  a  court  will  avoid,  if  possible,  setting  up  its  own 
judgment  as  against  the  judgment  of  a  co-ordinate  branch  of 
the  government  as  to  matters  which  are  by  the  constitution 
entrusted  to  the  discretion  of  such  co-ordinate  branch.  The 
diplomatic  relations  between  this  and  foreign  countries  being 


22  Constitutional  Government.  [§  7 

exclusively  within  the  control  of  the  executive  department,  the 
determination  by  that  department  as  to  whether  territory  has 
been  acquired  from  a  foreign  state  so  as  to  become  a  part  of 
the  United  States  will  be  conclusive  on  the  courts,  and  they 
will  not  undertake  to  review  the  correctness  or  propriety  of 
the  determination.  The  legislative  department  having  been 
vested  with  authority  to  levy  taxes,  the  propriety  of  any  par- 
ticular tax  as  to  its  subject,  amount,  or  the  method  of  its  col- 
lection, will  not  be  questioned  by  the  judiciary ;  but  on  the 
other  hand,  as  private  property  rights  are  involved  in  the 
exaction  of  a  tax,  the  courts  will  determine  whether  such 
exaction  is  within  the  scope  of  the  taxing  power,  and  whether 
the  property  is  properly  subject  to  taxation ;  and  if  a  particular 
method  of  apportionment  is  directed  by  the  constitution,  the 
courts  will  say  whether  that  method  has  been  followed.  Fur- 
thermore, as  the  two  houses  of  Congress  are  made  judges  of 
the  election  and  qualification  of  their  respective  members,  and 
are  authorized  to  prescribe  their  rules  and  procedure,  and 
punish  their  members  for  disorderly  behavior  by  expulsion, 
no  court  will  attempt  to  review  or  revise  the  action  of  either 
house  in  this  respect,  even  though  the  question  to  be  deter- 
mined may  in  its  nature  be  judicial.  For  instance,  if  a  member 
should  be  expelled,  no  court  could  pass  on  the  question  whether 
the  expelled  member  was  guilty  of  the  acts  charged  as  a  ground 
of  expulsion. 

In  other  words,  while  the  constitution  is  binding  upon  all 
branches  of  the  government,  the  question  whether  it  has  been 
violated  by  the  executive  or  legislative  branch  cannot  be 
inquired  into  by  the  courts,  except  in  a  case  of  judicial  cog- 
nizance, that  is,  a  case  coming  within  the  jurisdiction  which 
has  been  given  to  the  courts  by  the  constitution  and  the  laws. 
It  is  to  be  assumed  that  the  executive  and  legislative  depart- 
ments are  as  zealous  in  abiding  by  the  constitution  as  are  the 
courts,  and  that  the  requirements  and  limitations  of  the  con- 
stitution will  be  carefully  observed ;  and  only  when  in  the 
exercise  of  judicial  power  it  becomes  necessary  to  determine 
whether  an   executive  or  legislative  act  is  valid  will  the  courts 


§7]  Unconstitutionality  of  Acts.  23 

enter  into  a  consideration  of  the  question  whether  the  power 
granted  in  the  constitution  or  the  limitations  imposed  by  it 
have  been  exceeded  or  infringed.  Many  questions  of  con- 
stitutional law,  in  the  broad  and  proper  sense  of  the  term,  can 
never  come  before  the  courts  for  final  determination ;  because 
the  action  of  the  executive  and  legislative  departments  with 
reference  thereto  must,  so  far  as  any  legal  remedy  is  concerned, 
be  conclusively  presumed  to  be  in  accordance  with  the  con- 
stitution. It  is  true  that  in  Massachusetts  and  a  few  other 
states  the  constitution  authorizes  the  judicial  department  to 
give  advisory  opinions  to  the  legislative  and  executive  depart- 
ments on  application,  but  advisory  opinions  thus  given  have 
not  the  force  of  decisions  and  are  not  regarded  as  within  the 
scope  of  judicial  power  {^Opinion  of  the  Justices,) 

The  fact  that  the  judicial  department  is  Hmited  to  the  deter- 
mination of  controversies  properly  arising  in  cases  brought  into 
the  courts  for  adjudication,  is  to  be  carefully  borne  in  mind 
in  correctly  understanding  the  result  of  a  decision  rendered 
by  a  court.  Such  a  decision  is  conclusive  as  to  the  rights  of 
the  parties  before  the  court,  and  also  serves  as  a  precedent 
which  will  have  more  or  less  weight  in  the  determination  of 
subsequent  cases  involving  the  same  question.  But  the  courts 
cannot  repeal  or  annul  a  statute,  nor  dictate  to  the  executive 
in  any  compulsory  way  what  his  action  shall  be.  The  effect 
of  declaring,  in  a  particular  case,  that  a  statute  is  unconstitu- 
tional is  not  to  repeal  the  statute,  but  to  determine  in  the  case 
before  the  court  that  it  will  not  be  recognized  as  valid,  and  to 
furnish  a  precedent  or  authority  for  contending  in  similar  cases 
where  such  a  statute  is  brought  in  question,  that  it  should  not 
be  recognized.  The  statute  remains,  nevertheless,  on  the 
statute  books  as  an  act  of  the  legislative  department,  even 
though  for  the  purpose  for  which  it  has  been  relied  upon  the 
court  may  have  decided  that  it  is  not  a  part  of  the  law  of  the 
land.  The  decision  of  the  court  is  not  that  the  statute  shall 
thereafter  be  of  no  force  and  effect,  but  that  it  has  never  been 
a  valid  statute.  While  it  may  be  proper  that  other  depart- 
ments of  the  government  shall  yield  great  deference  to  the 


24  Constitutional  Government.  [§  7 

conclusions  of  the  court  on  such  a  question,  there  is  no 
method  of  compelHng  them  to  do  so,  and  they  must  still  be 
allowed  to  exercise  their  own  discretion  in  such  matter,  sub- 
ject only  to  the  presumption  that  if  another  case  is  presented 
to  the  judiciary  department,  involving  the  same  question,  the 
courts  will  adhere  to  the  former  decision. 

Although  the  power  of  the  courts  to  declare  legislative  acts 
unconstitutional  has  been  firmly  established  for  more  than  a 
century  and  has  been  acted  upon  in  numberless  cases  in  every 
state  of  the  Union,  as  well  as  in  the  Supreme  Court  of  the 
United  States,  there  is  still  a  popular  tendency  to  call  in  ques- 
tion the  propriety  of  its  exercise,  especially  when  the  decision 
seems  to  run  counter  to  public  opinion  in  favor  of  the  legisla- 
tion which  is  thus  annulled  ;  hence,  a  further  discussion  of  the 
development  of  the  doctrine  may  be  interesting.  In  some 
early  cases  in  the  English  courts  it  was  suggested  rather  than 
decided  that  an  act  of  Parliament  might  be  so  unreasonable 
and  unjust  that  the  courts  would  refuse  to  enforce  it.  But 
these  suggestions  were  not  followed  by  the  English  courts  to 
the  extent  of  establishing  any  rule  by  which  they  would  be 
authorized  to  question  the  validity  of  an  act  of  Parliament  on 
such  ground.  On  the  other  hand,  it  has  become  firmly 
established  as  a  principle  of  the  constitutional  law  of  Great 
Britain  that  the  courts  cannot  exercise  that  power.  The 
courts  of  Great  Britain  did,  however,  exercise  the  power  of 
declaring  invalid  acts  of  colonial  legislative  bodies,  on  the 
ground  that  they  were  in  excess  of  the  power  conferred  by 
their  colonial  charters,  and  out  of  this  exercise  of  power  no 
doubt  arose  the  notion  that  the  acts  of  legislative  bodies  hav- 
ing a  delegated  and  limited  authority  could  be  held  to  be 
invalid  in  the  courts.  Before  the  adoption  of  the  federal  con- 
stitution such  authority  had  been  exercised  in  a  few  cases  by 
the  courts  in  some  of  the  states.  But  in  the  case  of  Mar- 
bury  v.  Madison,  in  the  Supreme  Court  of  the  United  States 
(1803),  Chief  Justice  Marshall  delivered  an  opinion  on  the 
question  which  has  since  been  almost  uniformly  followed  in 
judicial  decisions  in  the  federal  and  state  courts,  and  which 


§7]  Unconstitutionality  of  Acts.  25 

practically  has  set  it  at  rest.  The  point  decided  in  that  case 
was  that  an  act  of  Congress  by  which  it  was  attempted  to  give 
jurisdiction  to  the  Supreme  Court  of  the  United  States  over  a 
class  of  cases  not  placed  within  its  jurisdiction  by  the  language 
of  the  constitution,  was  invalid.  The  reasoning  sustains  fully 
the  authority  of  a  court  to  inquire  into  the  question  whether  a 
legislative  act  is  within  the  scope  of  the  power  conferred  upon 
the  legislature  or  in  violation  of  restrictions  imposed  upon  it, 
and  to  declare  such  act  invalid  and  inoperative  if  it  be  found 
to  be  in  excess  of  the  power  granted  or  in  violation  of  the 
limitations  imposed.  The  soundness  of  this  decision  was  not, 
however,  at  once  universally  recognized  as  applied  to  the  state 
courts ;  and  in  at  least  one  state  an  attempt  was  made  to  im- 
peach judges  for  declaring  legislative  acts  to  be  unconstitu- 
tional. But  the  reasoning  of  Chief  Justice  Marshall,  based  on 
the  nature  of  our  federal  and  state  governments  as  exercising 
a  delegated  authority  under  their  respective  constitutions,  and 
the  practical  necessity  of  some  determination  by  a  duly  con- 
stituted authority  of  the  scope  of  governmental  power,  have 
led  to  the  universal  acceptance  by  the  courts  of  this  country 
of  his  conclusions,  and  a  popular  acquiescence  in  them  as  em- 
bodying a  sound  exposition  of  a  fundamental  principle  of  our 
constitutional  law. 


CHAPTER   II. 
ADOPTION   AND   AMENDMENT   OF  CONSTITUTIONS. 
8.    References. 

J.  Story,  Constitution,  §§  198-271,  1826-1831  ;  T.  M.  Cooley,  Constitu- 
tional Limitations,  ch.  iii ;  G.  T.  Curtis,  Constitutional  History,  chs. 
i-xv  ;  H.  Von  Hoist,  Constitutional  History  of  the  United  States,  ch.  i ; 
J.  A.  Jameson,  Constitutional  Conventions  ;  J.  I.  C.  Hare,  Constitutional 
Law,  chs.  iv-vii ;  J.  N.  Pomeroy,  Constituttotial  Law,  ch.  ii ;  J.  Fiske, 
Critical  Period ;  A.  B.  Hart,  Actual  Governmetit  (Am.  Citizen  Series), 
ch.  iii ;  James  Bryce,  American  Commonwealth,  chs.  i-iv  ;  The  Federalist, 
Nos.  21,  22  ;  J.  J.  Lalor,  Cyclopedia,  Arts.  "  Amendment  "  and  "  Conven- 
tion "  ;  T.  M.  Cooley,  Principles  of  Constitutional  Law,  ch.  i  ;  H.  C.  Black, 
Constitutional  Law,  §§  22,  28,  29;  McCulloch  v.  Maryland  (18 19,  4 
Wheaton,  316 ;  4  Curtis'  Decisions,  415  ;  Thayer's  Cases,  271 ;  McClain's 
Cases,  i;  Marshall's  Decisions,  Dillon's  ed.,  257);  Martin  v .  Hunter* s 
Lessee  (1816,  I  Wheaton,  304 ;  3  Curtis'  Decisions,  652;  Thayer's  Cases, 
123;  McClain's  Cases,  746);  Luther  v.  Borden  (1848,  7  Howard,  i; 
McClain's  Cases,  595) ;  Koehler  v.  Hill  (1883,  60  Iowa,  543  ;  Thayer's 
Cases,  252) ;  Maxwell  \.  Dow  (1900, 176  U.  S.  581) ;  Dorr  v.  United  States 
(1904,  195  U.  S.  138;  McClain's  Cases,  2d  ed.  1252). 

9.   Colonial  Charters;  Transition  to  State  Governments. 

The  governments  of  the  colonies,  as  provided  for  in  their 
charters,  or  instructions  to  governors,  or  frames  of  govern- 
ment proceeding  from  a  proprietor  or  from  the  royal  gov- 
ernment, combined  some  elements  of  royal  authority  with  other 
elements  of  popular  government.  The  governor  was  gene- 
rally an  appointive  officer,  selected  either  directly  by  the  king, 
or  indirectly,  under  his  authority,  by  the  proprietor  or  cor- 
poration to  whom  the  colonial  grant  was  made.  There  was 
usually  a  provision  for  a  legislative  body  of  two  branches,  the 
lower  branch,  at  least,  chosen  by  some  form  of  suffrage.  In 
the   exercise  of  the  powers   of  government,  serious  conflicts 

26 


• 


§  lo]  From  Colony  to  State.  27 

arose  in  several  of  the  colonies  between  the  representative  of 
the  royal  power  on  the  one  hand,  and  the  representatives  of 
the  people  on  the  other,  and  it  was  quite  as  much  the  result 
of  these  local  conflicts  as  it  was  of  the  agitation  in  the  colonies 
for  a  greater  measure  of  local  self-government,  which  led  to 
the  widespread  discussion  of  the  proper  sphere  and  functions 
of  government. 

The  change  from  the  charter  or  proprietary  or  royal  govern- 
ment to  a  state  government,  which  took  place  in  each  colony  in 
some  form  in  accordance  with  the  action  of  the  representatives 
of  the  colonies  assembled  in  the  general  Congress  at  Philadel- 
phia, in  1 775,  vvas  a  revolutionary  change  ;  that  is,  it  was  not  in 
accordance  with  any  prescribed  constitutional  form,  as  there 
could  not  be,  of  course,  any  power  in  the  colonial  governments 
to  disavow  the  authority  on  which  such  governments  rested. 
This  change  was  effected  in  definite  form  in  most  of  the  colo- 
nies by  the  adoption  of  a  constitution,  and  these  first  consti- 
tutions, in  several  instances,  consisted  of  three  parts:  (i)  a 
preamble,  declaring  the  purpose  for  which  the  constitution 
was  adopted;  (2)  a  bill  of  rights,  or  declaration  of  rights, 
containing  an  exposition  of  the  nature  and  powers  of  govern- 
ment and  limitations  on  the  powers  of  the  government  created 
under  the  constitution;  (3)  a  description  of  the  framework 
of  the  new  government  not  very  different  from  the  former 
colonial  organization.  The  preamble  was  omitted  in  later 
state  constitutions,  but  the  bill  of  rights  has  been  preserved  as 
an  important  feature  in  most,  if  not  all,  of  the  state  constitu- 
tions which  have  been  adopted  down  to  the  present  time. 

10.    Authority  on  which  State  Constitutions  Rest. 

The  first  state  constitutions  adopted  in  the  respective  colonies 
being  revolutionary  in  their  character  had  no  basis  of  legal 
authority,  and  rested  on  the  general  consent  of  the  people 
evidenced  by  their  acquiescence  in  the  authority  of  the  govern- 
ments established  under  such  constitutions.  Those  adopted 
prior  to  1780  were  not  submitted  to  popular  vote,  but  went 
into  effect  on  the  authority  of  the  legislative  bodies  existing  in 


28  Adoption  of  Constitutions.  [§  lo 

the  colonies,  and  assuming  the  revolutionary  prerogative  of 
declaring  independence  and  establishing  a  state  government. 
Many  of  those  subsequently  adopted  went  into  effect  in  accord- 
ance with  provisions  found  therein  for  their  submission  to  and 
adoption  by  vote  of  the  electors  in  the  respective  states. 

Provision  is  usually  made  in  state  constitutions  for  their 
amendment  and  for  the  substitution  of  another  constitution  in 
due  and  legal  form,  and  any  changes  thus  made  are  not  in 
their  nature  revolutionary  so  far  as  the  prescribed  methods  of 
alteration  or  substitution  are  pursued.  Whether  such  amend- 
ment or  substitution  is  effected  by  legislative  action  in  the 
submission  of  amendments  or  new  constitutions,  to  be  adopted 
by  popular  vote,  or  by  the  action  of  constitutional  conventions 
proposing  amendments  or  new  constitutions  to  go  into  effect 
on  adoption  by  popular  vote,  the  ultimate  authority  of  constitu- 
tional provisions  is  now  assumed  to  rest  on  the  action  of  the 
people  exercising  sovereign  power.  (See  above  §  6.)  Never- 
theless it  is  evident  that  even  in  this  exercise  of  power  the 
people  do  not  act  as  a  whole,  but  through  their  representa- 
tives in  the  legislature  or  the  constitutional  convention,  and 
the  voters  who  exercise  the  power  delegated  to  them  of  thus 
acting,  so  that  even  the  power  of  constitution  making  is  dis- 
charged in  the  exercise  of  a  delegated  rather  than  an  original 
sovereign  authority ;  and  unless  the  provisions  for  amendment 
or  substitution  are  complied  with,  the  new  constitution  will 
be  revolutionary  in  its  nature,  that  is,  will  rest  on  general  assent 
and  not  on  legal  authority.  But  even  though  revolutionary, 
such  an  amended  or  substituted  constitution  will  be  valid  and 
binding  so  far  as  the  acts  of  any  department  of  government 
authorized  by  it  are  exercised  under  its  authority.  If,  however, 
the  question  arises  whether  an  amendment  or  a  new  con- 
stitution has  been  lawfully  adopted,  and  that  question  is  to  be 
determined  under  the  authority  of  the  pre-existing  constitution, 
then,  unless  the  proper  steps  have  been  taken,  the  amendment 
or  the  new  constitution  cannot  be  recognized  by  the  govern- 
ment existing  under  the  previous  constitution.  {Koehler  v. 
Hill.) 


§  ii]  Authority.  —  Independence.  29 

11.    Independence  of  the  States. 

The  state  constitutions  adopted  in  the  colonies  did  not 
in  general  make  any  provision  for  union  under  a  federal 
government.  In  legal  effect  each  colony,  when  its  relations 
with  the  parent  government  were  severed,  became  an  inde- 
pendent state,  and  for  the  time  being  a  sovereign  state ;  and 
the  earliest  attempts  at  any  concerted  action  among  the  states 
were  based  on  the  mutual  consent  to  the  exercise  by  a  body 
of  delegates  appointed  from  the  different  states  of  authority  to 
act  for  the  states  in  matters  of  common  interest.  The  Con- 
tinental Congress,  wl;iich  adopted  the  Declaration  of  Inde- 
pendence, and  under  whose  authority  the  War  of  Independence 
was  inaugurated  and  carried  on,  was  made  up  of  delegates 
chosen  by  the  state  legislatures,  and  was  therefore  a  body 
without  power  to  control  the  action  of  the  states,  except  so 
far  as  they  saw  fit  to  abide  by  and  conform  to  its  recommen- 
dations.    It  was  practically  an  advisory  body. 

As  a  matter  of  fact,  however,  the  states,  although  theoreti- 
cally independent,  and  each  in  itself  a  complete  sovereign, 
did  not  attempt  to  exercise  all  the  powers  of  independent 
sovereignties.  No  one  of  them  made  war  on  its  own  account, 
sent  ambassadors  to  any  foreign  government,  or  received  repre- 
sentatives of  such  government.  Nor  did  they  have  with  one 
another  the  relations  which  usually  exist  among  states  inde- 
pendent of  and  foreign  to  each  other.  While  it  is  true  that 
the  states  are  still  regarded  in  law  as  foreign  to  each  other,  so 
far  as  their  jurisdictions,  laws,  and  affairs  are  concerned  (see 
below,  §  188),  they  do  not  occupy  towards  one  another,  nor 
towards  foreign  nations,  the  relations  of  sovereign  and  inde- 
pendent states.  Their  relations  towards  each  other  are  now 
determined  by  the  fact  that  their  people  are  bound  together 
under  a  common  federal  government;  but  during  the  transi- 
tion period  from  independence  to  the  establishment  of  the 
federal  government  they  were  in  the  anomalous  position  of 
theoretically  possessing,  but  not  practically  exercising,  all  the 
powers  of  independent  sovereignty. 


30  Adoption  of  Constitutions.  [§  12 


12.    Union  of  the  States  under  the  Articles  of 
Confederation. 

The  first  suggestion  in  the  Continental  Congress  for  the 
formation  of  the  federal  government  was  made  by  Franklin  in 
1775;  t^^  fi^st  official  draft  of  a  plan  for  the  confederation 
was  submitted  by  that  Congress  to  the  thirteen  states  for  rati- 
fication in  1777,  under  the  title,  "Articles  of  Confederation 
and  Perpetual  Union."  The  plan  was  to  go  into  effect  when 
the  articles  were  adopted  by  the  legislatures  of  each  of  the 
thirteen  states,  but  this  was  not  accomplished  until  March, 
1 781.  The  federal  government  provided  for  by  these  articles 
consisted  only  of  a  legislative  department ;  there  was  no  pro- 
vision for  a  permanent  executive  nor  permanent  federal  courts. 
It  was  expressly  provided  that  "  each  state  retains  its  sover- 
eignty, freedom,  and  independence,  and  every  power,  juris- 
diction, and  right  which  is  not  by  this  Confederation  expressly 
delegated  to  the  United  States  in  Congress  assembled."  The 
government  thus  provided  for  was  a  league  or  confederation 
for  common  defence,  and  the  Congress  was  to  consist  of  dele- 
gates without  limit  as  to  number,  chosen  and  paid  by  the 
legislatures  of  the  different  states,  those  from  each  state  acting 
as  a  unit.  It  was  provided,  however,  that  the  states  should 
not  individually  enter  into  relations  with  foreign  nations,  nor 
with  each  other,  by  way  of  common  treaty  or  compact,  nor 
engage  in  any  war,  without  the  consent  of  the  Congress  of 
the  confederation,  which  should  have  the  exclusive  right  and 
power  of  determining  on  peace  and  war  and  carrying  on  foreign 
relations.  Congress  was  authorized  to  borrow  money  and  sup- 
port an  army  and  navy,  and  for  the  purpose  of  raising  the 
necessary  funds  was  to  receive  contributions  from  the  several 
states  in  proportion  to  the  value  of  land.  But  no  means  was 
provided  for  collecting  taxes  direcdy  from  the  people,  nor  for 
enforcing  payment  of  the  contributions  asked  from  the  different 
states. 

The  government  thus  provided  for  had  not  sufficient  author- 
ity to  secure  respect    abroad  nor  to  discharge  at  home    the 


§  12]  Confederation.  31 

duties  essential  to  the  maintenance  of  peace  and  the  public 
credit ;  and  it  was  found  impossible  to  enforce  even  those 
limited  regulations  which  Congress  was  authorized  to  make. 
The  most  serious  difficulty,  however,  and  the  one  appealing 
most  strongly  to  the  people,  was  the  lack  of  any  uniform  regu- 
lations with  reference  to  commerce  among  the  states  or  with 
foreign  nations.  Each  state  imposed  its  own  restrictions  on 
the  bringing  of  goods  from  other  states  or  from  abroad,  and 
upon  the  shipment  of  goods  out  of  the  state.  Of  scarcely  less 
importance  was  the  want  of  any  common  and  stable  currency 
with  which  business  among  the  people  of  the  different  states 
might  be  carried  on ;  for  while,  under  the  provisions  of  the 
Articles,  Congress  had  "  the  sole  and  exclusive  right  and 
power  of  regulating  the  alloy  and  value  of  coin  struck  by 
their  own  authority  or  by  that  of  the  respective  states,"  no 
uniform  system  of  currency  was  actually  adopted  and  put  into 
operation. 

The  weakness  of  this  government,  and  its  defects,  which 
became  more  and  more  evident  as  it  attempted  to  exercise 
the  limited  powers  entrusted  to  it,  led  to  agitation  for  amend- 
ments of  the  Articles;  and  in  1787  a  call  was  issued  by 
Congress,  recommending  the  different  states  to  .send  delegates 
to  a  convention  for  the  purpose  of  revising  the  Articles  of 
Confederation  and  reporting  such  alterations  as  they  should 
deem  necessary  "to  the  exigencies  of  government  and  the 
preservation  of  the  nation!"  But  the  convention  of  delegates 
which  sat  in  Philadelphia  in  pursuance  of  this  call  from  May 
to  September,  1787,  found  it  to  be  impracticable  to  propose 
amendments  to  the  Articles  which  should  remedy  the  defects 
and  give  to  the  federal  government  sufficient  power ;  and  the 
convention  therefore  proceeded  to  formulate  an  entirely  new 
federal  constitution,  providing  for  a  central  government  radi- 
cally different  from  that  contemplated  in  the  Articles.  This 
new  constitution  was  to  go  into  effect  when  ratified  by  nine 
states  (Const.  Art.  VII).  It  was  submitted  to  the  people  of 
the  states  in  1787,  and  was  ratified  by  eleven  of  them  before 
any    definite    action    was    taken   under  it.     The    constitution 


32  Adoption  of  Constitutions.  [§13 

which  was  thus  proposed  and  ratified,  and  which  is  the  present 
constitution  of  the  United  States,  went  into  actual  effect  as  an 
instrument  of  government  in  1789.  In  April  of  that  year  the 
Congress,  chosen  in  accordance  with  the  new  constitution, 
met  and  counted  the  electoral  votes  for  president,  and  on 
April  30th  George  Washington  was  inaugurated  as  the  first 
President  of  the  United  States ;  and  a  few  months  later  the 
remaining  two  states  ratified  the  constitution. 


13.    Adoption  of  the  Federal  Constitution. 

In  the  new  constitution,  framed  by  the  delegates  from  the 
diff"erent  states,  referred  to  in  the  preceding  paragraph,  it  was 
provided  that  the  ratification  thereof  by  conventions  of  nine 
of  the  thirteen  states  should  be  sufficient  to  authorize  it  to  go 
into  efi'ect  as  among  the  states  in  which  it  was  so  adopted. 
As  the  Articles  of  Confederation  provided  only  for  their 
amendment  by  unanimous  consent  of  the  thirteen  states,  it  is 
apparent  that  the  new  constitution  was  to  this  extent  a  revolu- 
tionary measure,  not  authorized  by  the  Articles  of  Confedera- 
tion. As  a  matter  of  fact  one  state  —  Rhode  Island  —  sent 
no  delegates  to  this  convention,  and  was  therefore  in  no  way 
bound  by  its  proceedings;  and  neither  Rhode  Island  nor 
North  Carolina  ratified  until  after  the  federal  government 
authorized  by  the  constitution  was  actually  in  operation. 
Moreover,  the  Articles  of  Confederation  provided  for  their 
change  or  amendment  by  the  action  of  the  states,  —  meaning 
the  state  legislatures,  —  whereas  the  constitution  was  by  action 
of  Congress  submitted  for  ratification  in  the  different  states  by 
conventions  chosen  by  the  voters,  as  the  legislatures  of  the 
different  states  might  provide  (Const.  Art.  VII).  The  federal 
government  under  the  constitution  was  not,  therefore,  the 
legal  successor  to  the  government  under  the  Articles  of  Con- 
federation, but  supplanted  it.  So  far,  however,  as  the  new 
government  was  recognized  by  the  states,  eleven  of  whom  had 
ratified  before  such  government  was  organized,  it  was  as  to 
them  legitimate  and  regular,  and  it  was  acquiesced  in  by  the 


§  13]  Federal  Constitution.  33 

remaining  two  states  when  they  finally  ratified  it  in  the  pre- 
scribed form. 

It  is  apparent  from  what  has  been  said  as  to  the  method  of 
adopting  the  federal  constitution  that  it  was  not  a  league  or  a 
compact  among  several  independent  sovereign  states,  but,  on 
the  contrary,  a  government  resting  for  its  authority  on  the 
assent  of  the  people  of  the  different  states  expressed  by  ratifi- 
cation in  conventions  of  delegates  selected  by  the  people.  It 
differed  from  the  government  under  the  Articles  of  Confedera- 
tion, therefore,  primarily  in  the  source  of  its  authority,  and 
secondarily  in  the  nature  of  the  government  authorized,  as  in- 
dicated by  the  powers  delegated  to  it.  This  difference  is  well 
expressed  in  the  preamble,  which  is  in  the  following  words : 
*'  We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our  poster- 
ity, do  ordain  and  establish  this  constitution  for  the  United 
States  of  America." 

Although  the  people  acted  in  the  different  states  separately, 
there  is  no  reason  now  to  question  the  general  proposition 
that  the  federal  government  rests  on  the  authority  of  the 
people  as  a  whole,  and  not  on  the  authority  of  the  states  indi- 
vidually. As  to  the  form  of  government  provided,  it  is  signi- 
ficant that  its  powers  are  to  be  exercised  with  reference  to  its 
citizens  as  individuals,  rather  than  with  reference  to  the  states 
as  communities.  The  revenues  of  the  government  are  to  be 
raised  by  taxes  on  persons  and  property,  not  by  contributions 
from  the  states ;  the  salaries  of  senators  and  representatives 
are  to  be  paid  by  the  United  States,  and  not  by  the  states 
from  which  they  are  chosen ;  and  in  general  the  powers  of  the 
government  are  to  be  exercised  by  the  making  of  laws,  the 
enforcement  of  which  is  entrusted  to  a  president  and  a  judicial 
department. 


34  Adoption  of  Constitutions.  [§  14 

14.    Methods  of  Constitutional  Amendment. 

Written  constitutions  usually  contain  provisions  for  their  own 
amendment.  In  the  federal  constitution  it  is  provided  (Art.  V) 
that  amendments  shall  be  proposed  by  Congress,  two-thirds  of 
each  house  concurring,  which  shall  become  effective  as  parts 
of  the  constitution  when  ratified  by  the  legislatures  of,  or  by 
constitutional  conventions  in,  three-fourths  of  the  several  states 
as  may  be  proposed  by  Congress  ;  or,  on  the  application  of  the 
legislatures  of  two-thirds  of  the  several  states,  Congress  is 
directed  to  call  a  convention  for  proposing  amendments  to  the 
constitution,  which  amendments  shall  go  into  effect  when  ap- 
proved by  the  legislatures  of,  or  conventions  in  three-fourths  of 
the  states  as  may  be  proposed  by  Congress  ;  but  no  state  with- 
out its  consent  can  be  deprived  of  its  equal  representation  in 
the  Senate.  All  the  amendments  to  the  federal  constitution 
thus  far  made  have  been  proposed  by  Congress  and  ratified  by 
the  legislatures  of  the  requisite  number  of  states,  the  result 
of  the  action  of  the  states  being  declared  by  the  executive 
department. 

The  methods  provided  for  amendment  of  state  constitutions 
are  by  no  means  uniform.  In  some  states  amendment  by  the 
legislature  has  been  recognized,  but  the  usual  method  is  for 
the  legislature  to  submit  the  proposed  amendment  to  the 
qualified  electors  for  approval.  Whatever  the  method  pro- 
vided, it  must  be  strictly  followed,  and  no  amendment  not 
proposed  and  adopted  in  the  method  prescribed  becomes  a 
part  of  the  constitution ;  and  it  is  for  the  courts  to  determine, 
when  such  a  question  is  properly  brought  before  them,  whether 
the  amendment  has  been  legally  adopted.  No  matter  how 
general  may  have  been  the  popular  approval  of  a  proposed 
amendment,  if  the  required  steps  have  not  been  taken,  it  does 
not  become  a  part  of  the  constitution.  While  a  constitution 
may  become  effective  by  general  acquiescence,  a  government 
provided  for  by  such  a  constitution,  not  adopted  in  accordance 
with  previously  prescribed  methods,  is  in  its  origin  revolution- 
ary and  not  regular,  and  a  constitution  which  has  gone  into 
effect  as  the  fundamental  law  can  be  regularly  changed  only  in 


§  14]  Methods  of  Amendment.  35 

accordance  with  its  provisions.  A  state  cannot  by  constitu- 
tional amendment  violate  the  provisions  of  the  federal  consti- 
tution, so  far  as  they  impose  restrictions  on  the  exercise  of 
state  power,  any  more  than  it  can  do  so  by  statute.  Nor  can 
it  by  amendment  provide  for  any  other  than  a  republican  form 
of  government,  for  the  United  States  is  bound  to  guarantee 
that  form  of  government  to  every  state  in  the  union  (Const. 
Art.  IV,  §  4). 


CHAPTER   III. 

NATURE  OF  THE  FEDERAL  AND  STATE  GOVERNMENTS; 
THEn<   RELATIONS. 

15.    References. 

Nature  Of  State  and  Federal  Governments  :  A.  B.  Hart,  Actual 
Government  (Am.  Citizen  Series),  ch.  vi;  T.  M.  Cooley,  Constitutional 
Limitations^  ch.  viii ;  J.  Kent,  Commentaries  on  American  Law,  Lee.  xviii ; 
J.  I.  C.  Hare,  Constitutional  Law,  Lees,  vi,  vii ;  H.  C.  Black,  Constitu- 
tional Law,  ch.  ii ;  J.  N.  Pomeroy,  Constitutional  Law,  §§  85-120;  J. 
Bryce,  American  Commonwealth,  I,  chs.  iv,  xxvii,  xxviii,  xxxvi,  xxxvii ; 
J.  F.  Jameson,  Essays  ifi  Constitutional  History:  J.  Wilson,  Lectures  on 
Jurisprudence  (Andrew's  ed.),  I,  ch.  xi;  II,  ch.  i ;  Lane  v.  Oregon  (1868,  7 
Wall.  71  ;  McClain's  Cases,  40). 

Rule  of  Construction;  Liberal  Interpretation;  Implied 
Powers  :  J.  Story,  Constitution,  §§  397-456 ;  J.  Kent,  Comtnefitaries,  I, 
**  243-254  ;  McCulloch  v.  Maryland  {\^ig,  4  Wheaton,  316  ;  4  Curtis'  De- 
cisions, 415  ;  Thayer's  Cases,  271  ;  McClain's  Cases,  i). 

Supremacy  of  the  Federal  Government:  J.  Story,  Constitution, %% 
373-396;  Martin  v.  Hunter's  Lessee  (1816,  I  Wheaton,  304;  3  Curtis, 
Decisions,  562;  Thayer's  Cases,  123;  McClain's  Cases,  746);  Tarble's 
Case  (1871,  13  Wallace,  397;  Thayer's  Cases,  2298;  McClain's  Cases, 
43);  Tennessee  v.  Davis  (1879,  100  U.  S.  257;  Thayer's  Cases,  316; 
McClain's  Cases,  51) ;  Ex  parte  Siebold  (1879,  100  U.  S.  371  ;  McClain's 
Cases,  56;  Thayer's  Cases,  326) ;  Ln  re  Nagle  (1889, 135  U.  S.  i  ;  McClain's 
Cases,  65;  Thayer's  Cases,  335);  Ln  re  Debs  (1895,  ^S^  U-  S.  564); 
Hauenstein  v.  Lynham  (1879,  ^o^  U.  S.  483;  McClain's  Cases,  72); 
Davis  V.  Elmira  Sav.  Bank  (1895,  ^^^  ^-  S-  275  ;    McClain's  Cases,  'jd). 

Limitations  in  the  Federal  ConstitutioxN  :  J.  I.  C.  Hare,  Consti- 
tutional Law,  Lect.  xxiv  ;  J.  R.  Tucker,  Constitution,  ch.  xiv  ;  H.  C.  Black, 
Constitutional  Law,  ch.  iii ;  The  Federalist,  Nos.  ^1,  84 ;  H.  V.  Ames, 
Amend?nents  to  the  Constitution;  E.  McClain,  Federal  Protection  against 
State  Pmver  {Harv.  Law  Rev.  VI,  405) ;  Barron  v.  Baltimore  (1833,  7 
Peters,  243;  10  Curtis'  Decisions,  464;  McClain's  Cases,  14;  Thayer's 
Cases,  449) ;  Maxwell  v.  Dow  (1900,  176  U.  S.  581) ;  Twiningv.  New  Jer- 
sey (1908,  211  U.  S.  78  ;  McClain's  Cases,  2d  ed.  17);  Hawaiiw.  Mankichi 
(1903, 190  U.  S.  197  ;  McClain's  Cases,  2d  ed.  1214) ;  Dorr  v.  United  States 
{1904,  195  U.  S.  138;   McClain's  Cases,  2d  ed.   1252);  Slaughter- House 

36 


§  i6]  Division  of  Powers.  37 

Cases  (1872,  16  Wallace,  36;  McClain's  Cases,  18;  Thayer's  Cases, 
516) ;  Ufiited  States  V .  Cruikshank  (1S75,  9^  U.  S.  542;  McClain's  Cases, 
31) ;  Civil  Rights  CVw<fJ  (1883,  109  U.  S.  3 ;  Thayer's  Cases,  554;  McClain's 
Cases,  37) ;  Hurtado  v.  California  (1884,  no  U.  S.  516;  McClain's  Cases, 
905;  Thayer's  Cases,  616). 

16.    Division  of  Powers. 

The  first  state  constitutions  were  adopted  at  a  time  when 
there  was  no  established  federal  government,  so  that  all  the 
powers  of  government,  so  far  as  their  exercise  was  in  any  way 
provided  for,  were  distributed  among  the  three  departments  of 
the  state  governments,  and  this  form  of  constitution  has  been 
substantially  followed  to  the  present  time  in  the  amendment  of 
former  constitutions  or  the  making  of  new  ones.  But  when 
the  people,  through  their  proper  representatives,  adopted  the 
federal  constitution,  they  thereby  restricted  the  authority  of  the 
state  governments,  so  far  as  powers  which  had  theretofore  ex- 
isted in  the  state  governments  were  conferred  upon  the  federal 
government.  The  power  of  any  branch  of  a  state  government 
consists,  therefore,  of  the  general  power  conferred  upon  that 
department  by  the  state  constitution,  subject  to  the  limitations 
found  in  the  state  constitution  itself;  and  subject  also  to  the 
implied  Hmitation  arising  out  of  the  creation  and  existence  of 
a  federal  government  with  the  powers  delegated  to  it.  But  on 
the  other  hand  a  state  government  does  not  derive  its  au- 
thority in  any  way  from  the  federal  government,  nor  are  the 
departments  of  the  state  government  in  any  way  divisions  or 
subordinate  agencies  of  the  corresponding  departments  of  the 
federal  government.  The  two  governments  rest  upon  the  same 
general  authority.  There  is  a  division  of  powers  of  government, 
therefore,  between  the  state  and  federal  governments,  which 
division  was  effectuated  by  the  adoption  of  the  federal  consti- 
tution, creating  a  national  government  which  should  exercise 
the  authority  conferred  upon  it  by  that  instrument.  We  have 
then  in  the  United  States  a  curious  and  original  example  of 
divided  sovereignty,  which  results  in  many  theoretical  and  some 
practical  difficulties  in  the  determination  of  the  respective 
powers  of  the  state  and  federal  governments.     Any  apparent 


38 


Relations  of  Governments.  [§  i6 


conflict  in  authority,  however,  is  to  be  settled  by  consideration 
of  the  fact  that  the  adoption  of  the  federal  constitution 
amounted  in  itself  to  a  restriction  of  state  authority;  hence 
there  can  be  no  inconsistency  between  the  exercise  of  power  by 
the  state  governments  and  a  like  exercise  of  power  by  the 
federal  government  under  the  provisions  of  the  federal  consti- 
tution. Practically,  it  is  to  be  noticed  that  the  powers  given  to 
the  federal  government  are  in  general  only  those  essential  to  the 
existence  of  such  a  government  and  the  discharge  of  functions 
involving  a  union  of  the  states  and  the  common  interests  of  the 
people  of  the  different  states  ;  while  to  the  state  governments  is 
left  such  authority  as  is  necessary  to  the  protection  of  the 
people  of  the  different  states  in  their  personal  liberty,  their 
property,  and  their  general  welfare. 

The  relation  of  persons  to  each  other  under  the  law  with 
reference  to  their  personal  and  property  rights,  except  so  f^ir 
as  the  federal  constitution  contains  specific  provisions  on  the 
subject,  is  within  the  jurisdiction  of  the  states.  That  great 
body  of  the  law  which  affects  ownership,  possession,  conveyance, 
and  distribution  of  property,  which  determines  the  status  and 
privileges  of  those  who  are  subject  to  the  law,  and  which  protects 
personal  and  property  rights  of  one  person  from  infringement 
by  another,  is  the  law  of  the  state,  and  in  this  sense  it  has  been 
said  that  there  is  no  common  law  of  the  United  States,  but  that 
the  common  law,  that  is,  the  unwritten  general  law  which  the 
courts  recognize  and  apply  in  the  absence  of  any  statutory  pro- 
visions, is  deemed  to  be  the  law  of  each  state,  resting  on  its 
general  authority,  and  not  on  the  authority  of  the  United  States. 
General  powers  of  government,  involving  the  protection  of  per- 
sonal and  property  rights,  remain  in  the  state,  except  in  so  far 
as  by  the  provisions  of  the  federal  constitution  they  are  con- 
ferred upon  the  federal  government.  Thus  the  so-called  police 
power,  that  is,  the  power  to  regulate  the  conduct  of  persons 
and  the  control  and  management  of  property,  with  the  general 
object  of  securing  to  each  protection  against  unlawful  interfer- 
ence by  another,  and  to  protect  the  public  as  a  whole  against 
injury  from  unlawful  action  of  its  members,  is  in  the  state.     (See 


§  17]  Rule  of  Construction.  39 

below,  §  49.)  It  is  for  the  state  government  to  regulate  the 
conduct  of  persons  and  the  control  of  property  so  as  to  prevent 
injury  to  the  public  or  to  others.  As  a  branch  of  this  general 
police  power,  the  punishment  of  crimes  is  left  to  the  states, 
except  in  so  far  as  under  express  or  implied  authority,  found 
in  the  federal  constitution,  the  power  to  punish  particular 
classes  of  crimes  may  have  been  conferred  upon  the  federal 
government.      (See  below,  §  52.) 

On  the  other  hand,  the  federal  government  is  given  author- 
ity to  legislate  with  reference  to  taxation  for  national  purposes, 
the  relations  of  the  United  States  to  foreign  governments,  the 
making  of  war  and  peace,  the  maintenance  of  an  army  and 
navy,  the  regulation  of  foreign  and  interstate  commerce,  and 
the  government  of  territory  not  included  within  any  state. 
These  powers,-  and  others  which  are  conferred  upon  the 
federal  government,  are  such  as  were  deemed  necessary  by  the 
framers  of  the  constitution  in  order  to  enable  the  federal 
government  to 'carry  out  the  purposes  for  which  it  was  formed. 
However,  while  these  general  purposes  may  be  taken  into 
account  in  construing  the  powers  given  to  the  federal  govern- 
ment by  the  constitution,  it  is  not  left  an  open  question  what 
the  powers  of  that  government  shall  be  in  order  to  carry  out 
the  general  object  of  its  creation  ;  but  the  powers  granted  are 
limited  to  those  which  were  deemed  to  be  necessary  and 
proper  when  the  federal  constitution  was  adopted,  or  which 
have  been  given  to  it  by  subsequent  amendments. 

17.    Rule  of  Construction  as  to  Powers  Granted  by  Federal 
and  State  Constitutions. 

It  is  apparent  from  what  has  been  said  that  the  general 
powers  of  government  are  vested  in  the  departments  of  the 
state  government,  while  the  departments  of  the  federal  gov- 
ernment have  only  such  powers  as  are  given  to  them  under 
the  federal  constitution.  It  may  therefore  properly  be  said 
that  the  state  government  has  all  the  governmental  power  not 
denied  to  it  by  the  state  constitution,  so  far  as  not  inconsistent 
with    the    powers    given    to  the  general    government    by   the 


40  Relations  of  Governments.  [§17 

federal  constitution ;  while  the  federal  government,  on  the 
other  hand,  is  one  of  enumerated  powers.  In  other  words, 
the  state  government  is  a  government  of  general  powers, 
while  the  powers  of  the  federal  government  are  limited  in 
their  scope.  It  would  perhaps  be  more  logical,  however,  to 
say  that  neither  state  nor  federal  government  has  any  powers 
save  those  granted ;  and  that  the  grant  of  power  to  the  state 
government  is  in  terms  general,  while  the  grant  to  the  federal 
government  is  in  terms  specific.  For  instance,  state  constitu- 
tions do  not  usually  in  specific  terms  give  to  any  department 
of  the  state  government  the  power  to  impose  taxes ;  but  the 
creation  of  a  legislative  department  under  the  terms  of  a  state 
constitution  implies  the  power  to  impose  taxes,  subject  only 
to  limitations  which  may  be  expressed,  while,  on  the  other 
hand,  the  power  to  impose  taxes  for  federal  purposes  is  speci- 
fied in  the  federal  constitution,  and  does  not  exist  as  a  gen- 
eral power,  conferred  apart  from  such  specification.  Another 
illustration  may  be  found  in  the  power  to  provide  for  the 
punishment  of  crimes.  This  power  is  incident  to  the  general 
power  given  to  the  legislative  department  of  a  state  govern- 
ment, and  need  not  be  conferred  through  the  state  constitution 
in  terms.  The  legislative  department  of  the  federal  government, 
however,  has  such  power  only  as  the  result  of  specific  grant, 
or  by  way  of  incident  to  or  implication  from  other  powers 
which  are  granted.  Thus,  the  power  to  punish  counterfeiting 
and  to  define  and  punish  piracy  and  felony  on  the  high  seas 
are  specifically  given  to  Congress;  but  as  incidental  to  the 
power  to  legislate  with  reference  to  territory  ceded  by  the 
states  to  the  United  States,  as  provided  in  the  federal  consti- 
tution, for  the  seat  of  government,  or  for  forts  and  arsenals. 
Congress  may  provide  a  complete  criminal  code ;  and  it  may 
likewise  provide  for  the  punishment  of  certain  crimes  as  in- 
cident to  the  exercise  of  other  powers  conferred,  such  as  the 
power  to  collect  duties  on  imports,  or  establish  post  offices 
and  post  roads.     (See  below,  §  52.) 

Many  state    constitutions    include  clauses  either   expressly 
reserving   to   the   people    the    ultimate   sovereignty,   and   all 


§  1 8]  Implied  Powers.  41 

powers  not  granted  by  the  constitution  to  the  government,  or 
expressly  limiting  the  departments  of  government  to  the 
exercise  of  the  powers  conferred.  But  as  the  people  cannot 
exercise  under  a  constitution  any  powers  of  government  not 
provided  for  in  the  constitution  (see  above,  §§  4,  6)  it  is  difficult 
to  give  any  specific  effect  to  such  reservations  or  limitations, 
save  as  they  may  be  construed  to  indicate  that  unlimited  power 
is  not  conferred  upon  any  department  of  government.  The 
provision  of  the  federal  constitution  (Amend.  IX.)  that  "The 
enumeration  in  the  constitution,  of  certain  rights,  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people  " 
is  a  mere  general  reservation  of  the  same  character  as  those 
often  found  in  state  constitutions;  but  the  further  provision 
(Amend.  X.)  that  "The  powers  not  delegated  to  the  United 
States  by  the  constitution,  nor  prohibited  by  it  to  the  states, 
are  reserved  to  the  states  respectively,  or  to  the  people  "  was 
evidently  intended  to  emphasize  and  make  plain  the  general 
principle  that  the  federal  government  is  one  of  enumerated 
powers. 

18.    Implied  Powers  under  the  Federal  Constitution; 
Liberal  Interpretation. 

Although  the  federal  government  is  given  limited  rather 
than  general  powers,  it  cannot  be  said  that  it  has  no  powers 
save  those  expressed  in  the  federal  constitution.  In  determin- 
ing the  meaning  of  any  written  document,  whether  it  be  a 
contract,  a  statute,  or  a  constitution,  it  will  frequently  be 
necessary  to  determine  the  meaning  by  considering  what  is 
implied,  as  well  as  what  is  expressed,  in  the  language  used. 
It  is  manifestly  impossible  that  every  incident  and  detail  shall 
be  set  out  in  specific  terms,  or  that  each  circumstance  calling 
for  an  application  of  the  language  used  shall  have  been  an- 
ticipated and  provided  for ;  and  it  is  particularly  true  of 
statutes  and  constitutions  that  the  intent  of  the  law-making  or 
constitution-making  body  will  have  to  be  inferred  with  refer- 
ence to  matters  not  specifically  covered.     The  federal  govern- 


42  Relations  of  Governments.  [§  i8 

ment,  therefore,  has  not  only  the  powers  expressly  granted  to 
it  by  the  constitution,  but  also  those  which  by  reasonable 
implication  are  included  in  or  flow  from  those  expressly 
granted.  Indeed,  this  is  specially  declared  in  the  constitu- 
tion itself,  which  provides  that  Congress  shall  have  power  "  to 
make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  "   the   powers   conferred  upon  it  (Const.  Art. 

I,  §  8,iri8). 

It  has  never  been  questioned,  therefore,  that  the  depart- 
ments of  the  federal  government  have*  impHed  as  well  as  ex- 
press powers,  but  controversy  may  arise  as  to  whether  a  given 
power  claimed  for  the  federal  government  as  an  implied  power 
is  properly  implied  in  the  grant  of  specified  powers.  In  a 
controversy  of  this  character  there  may  be  great  difference  of 
opinion;  but  the  solution  will  be  facilitated  by  bearing  in 
mind  that  the  meaning  of  the  framers  of  the  constitution  is  to 
be  sought  in  the  language  used ;  and  that  an  implied  power 
which  is  claimed  should  be  justified  as  a  reasonable  grant  by 
implication  in  some  of  the  enumerations  of  express  power. 
At  various  times  there  have  been  conflicting  views  with  refer- 
ence to  particular  powers  claimed  as  incidental,  between  those 
who  consider  themselves  strict  constructionists,  and  those  who 
insist  upon  a  liberal  interpretation  of  the  constitution.  But  in 
determining  what  acts  are  necessary  and  proper  in  the  exer- 
cise of  the  enumerated  powers,  a  liberal  interpretation  has 
been  favored  by  the  supreme  court  of  the  United  States.  It 
is  perhaps  not  possible  to  improve  on  the  language  of  Chief 
Justice  Marshall,  in  announcing  the  rule  to  be  followed  in  the 
interpretation  of  the  federal  constitution :  "  Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the  constitution,  and 
all  means  which  are  appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consist  with  the  letter 
and  spirit  of  the  constitution,  are  constitutional "  {McCudoch 
v.  Maryland,  4  Wheaton,  316,  421).  Examples  of  the  exer- 
cise of  implied  powers  by  Congress  are  collected  in  another 
place.     (See  below,  §  117.) 


§  19]  Federal  Supremacy.  43 

19.    Supremacy  of  Federal  Government  in  Exercise  of 
Po"wers  Granted. 

Although,  as  compared  with  a  state  government,  the  federal 
government  is  one  •  of  limited  and  enumerated  powers  rather 
than  of  general  powers,  it  does  not  follow  that  it  is  in  any  way 
inferior  or  subordinate  to  a  state  government.  On  the  other 
hand,  its  very  nature  and  the  purpose  for  which  it  was  created 
indicate  that  in  the  exercise  of  the  powers  granted  either  ex- 
pressly or  by  implication,  it  must  be  supreme.  In  Article  VI 
(^2  )  of  the  federal  constitution,  it  is  declared  :  "  This  consti- 
tution, and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties  made  or  which  shall  be 
made  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land ;  and  the  judges  in  every  state  shall 
be  bound  thereby,  anything  in  the  constitution  or  laws  of  any 
state  to  the  contrary  notwithstanding."  In  expounding  this 
provision  it  has  been  said  :  "  If  any  one  proposition  could 
command  the  universal  assent  of  mankind,  we  might  expect 
it  would  be  this :  that  the  government  of  the  Union,  though 
limited  in  its  powers,  is  supreme  within  its  sphere  of  action. 
This  would  seem  to  result  necessarily  from  its  nature.  It  is 
a  government  of  all ;  its  powers  are  delegated  by  all ;  it  repre- 
sents all,  and  acts  for  all.  Though  any  one  state  may  be  willing 
to  control  its  operations,  no  state  is  willing  to  allow  others  to 
control  it.  The  nation,  on  those  subjects  on  which  it  can  act, 
must  necessarily  bind  its  component  parts  "  (Marshall,  Ch.  J., 
in  McCulloch  v.  Maryland,  4  Wheaton,  316,405).  Moreover, 
in  order  that  the  supremacy  of  the  federal  government  as  to 
those  matters  entrusted  to  its  authority  shall  be  maintained 
without  encroachment,  it  is  essential  that  the  final  interpreta- 
tion of  the  extent  of  its  powers  shall  rest  with  it  alone ;  and 
one  of  the  functions  of  the  federal  judiciary  is  to  determine 
ultimately  the  construction  of  the  federal  constitution  with 
reference  to  the  powers  of  the  federal  government.  Other 
courts  may  be  called  upon  in  cases  properly  before  them  to 
construe  the  federal  constitution  as  a  part  of  the  written  law; 


44  Relations  of  Governments.  [§  20 

but  when  such  constitution  has  been  interpreted  in  any  re- 
spect by  the  supreme  court  of  the  United  States,  that  interpre- 
tation becomes  a  part  of  the  supreme  law,  binding  on  all  the 
state  courts,  and  on  the  citizens  of  the  states.  (See  below, 
§§  142,146.) 

A  clear  understanding  of  the  declared  supremacy  of  the 
power  of  the  federal  government,  and  of  the  conclusiveness 
of  the  interpretation  by  the  supreme  court  of  the  United 
States  of  the  scope  of  these  powers,  will  indicate  that  there  is 
no  possibility  of  any  conflict  between  the  federal  government 
and  the  government  of  a  state.  If  conflicting  assertions  of 
authority  are  to  be  reconciled  by  peaceful  and  lawful  means, 
rather  than  by  the  resort  to  violence,  it  must  be  by  the  recog- 
nition of  ultimate  authority  somewhere  to  determine  the  con- 
troversy; and  there  can  be  no  reasonable  question  as  to  the 
intention  of  the  framers  of  the  constitution  that  this  ultimate 
solution  should  be  furnished  by  the  federal  government,  and 
that  it  should  be  binding  upon  all. 

20.    Limitations  in  the  Federal  Constitution  on  State  and 
Federal  Fewer. 

Not  only  is  the  federal  constitution  in  itself  a  limitation  on 
state  power,  in  so  far  as  the  exercise  by  the  federal  government 
of  the  powers  conferred  upon  it  are  inconsistent  with  any  exer- 
cise by  the  state  of  authority  in  conflict  with  that  of  the  federal 
government  as  to  matters  coming  within  its  legitimate  scope, 
but  it  was  deemed  necessary  in  some  respects  definitely  to 
limit  the  powers  of  the  state  governments,  or  to  prohibit  their 
exercise  of  authority  in  ways  inconsistent  with  the  general  pur- 
pose of  forming  a  national  government.  Therefore  it  is  ex- 
pressly provided  (Art.  I,  §  lo)  that  "no  state  shall  enter 
into  any  treaty,  alliance,  or  confederation  ;  grant  letters  of 
marque  and  reprisal  ;  coin  money ;  emit  bills  of  credit  ;  make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts  ; 
...  or  grant  any  title  of  nobility  "  ;  and  further,  that  "  no 
state  shall  without  the  consent  of  the  Congress,  levy  any  im- 
posts or  duties   on  imports  or  exports,  except  what   may  be 


§  2i]  Federal  Limitations.  45 

absolutely  necessary  for  executing  its  inspection  laws,"  etc., 
nor,  "  without  the  consent  of  Congress,  lay  any  duty  of  ton- 
nage, keep  troops  or  ships  of  war  in  time  of  peace,  enter  into 
any  agreement  or  compact  with  another  state  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded,  or  in  such 
imminent  danger  as  will  not  admit  of  delay."  Further  con- 
sideration will  be  given  to  these  limitations  in  connection  with 
the  discussion  of  particular  branches  of  the  federal  power,  but 
they  must  properly  be  borne  in  mind  here  as  indicating  the 
intention  to  subordinate  the  authority  of  the  state  to  that  of 
the  federal  government  in  national  matters. 

The  relation  of  the  states  to  each  other  is  also  in  some  re- 
spects regulated  by  the  federal  constitution.  The  prohibition 
noticed  in  the  preceding  paragraph  as  to  agreements  or  com- 
pacts would  prevent  any  attempt  being  made  by  two  or  more 
states,  through  concerted  action,  to  interfere  with  national 
authority ;  and  would  indicate  the  intention  that,  while  each 
state  in  itself  is  recognized  as  having  powers  of  government, 
the  relations  of  the  states  to  each  other,  and  of  each  to  the 
citizens  of  each  other,  are  to  be  determined  by  the  federal 
constitution,  and  not  by  mutual  arrangement.  But  there  are 
further  specific  provisions  as  to  the  relations  between  the  states. 
Thus,  in  Article  IV  it  is  specified  that  "  full  f^iith  and  credit 
shall  be  given  in  each  state  to  the  public  acts,  records  and 
judicial  proceedings  of  every  other  state";  that  "citizens  of 
each  state  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  states  "  ;  and  that  fugitives  from  jus- 
tice, fleeing  from  one  state  to  another,  shall  be  surrendered 
back  by  the  latter  on  demand  of  the  chief  executive  authority  of 
the  former.  These  clauses  must  also  be  more  fully  considered 
in  another  connection  (see  below,  ch.  xxxiii),  but  are  important 
here  as  indicating  the  nature  and  scope  of  the  federal  plan. 

21.     Limitations  in  the  Federal  Constitution  for  Frotectiou 
of  Personal  Rights. 

When  the  federal  constitution  was  framed  by  the  constitu- 
tional convention,  it  was  assumed,  not  only  that  the  protection 


46  Relations  of  Governments.  [§  21 

of  the  personal  and  property  rights  of  the  citizens  of  each  state 
would  remain  primarily  with  the  states  themselves,  but  also 
that,  as  the  federal  government  was  to  be  a  government  pos- 
sessing only  enumerated  powers,  no  general  guaranties  to  indi- 
viduals against  the  improper  exercise  of  authority  on  the  part 
of  the  federal  government  were  necessary.  Nevertheless,  a  few 
restrictions  on  the  federal  government  were  specifically  im- 
posed. Thus  (Art.  I,  §  9),  the  privilege  of  the  writ  of  habeas 
corpus  was  guaranteed ;  the  passage  of  bills  of  attainder  or 
ex  post  facto  laws  was  prohibited,  and  the  power  to  grant 
titles  of  nobility  was  denied ;  and  in  the  same  connection  the 
powers  of  the  federal  government  were  restricted  so  that  there 
should  be  no  discriminations  made  between  the  states  or  the 
citizens  thereof.  But  there  were  no  express  provisions  for 
the  protection  of  personal  and  property  rights.  As  against  the 
federal  government,  there  was  no  guaranty  of  due  process  of 
law,  or  the  protection  of  contract  rights,  or  of  jury  trial  in  civil 
cases  and  the  usual  forms  of  procedure  in  criminal  cases.  The 
omission  from  the  federal  constitution  of  any  such  general 
guaranties  was  made  a  ground  of  objection  to  its  adoption  in 
several  of  the  state  conventions.  The  fact  that  the  state  con- 
stitutions all  contained  some  general  guaranties  in  the  form  of 
a  bill  of  rights  gave  countenance  to  the  assumption  that  such 
guaranties  were  an  essential  and  fundamental  part  of  a  consti- 
tution, and  in  some  of  the  state  conventions  the  ratification  of 
the  proposed  federal  constitution  was  accompanied  with  the 
recommendation  that  a  bill  of  rights  be  added  to  it  by  way 
of  amendment.  Accordingly,  ten  amendments  to  the  federal 
constitution  were  proposed  to  the  several  states  by  the  first 
Congress,  and  were  ratified  and  became  a  part  of  the  constitu- 
tion prior  to  the  year  1791.  Of  these  Amendment  IX  is  in 
the  nature  of  a  general  saving  clause,  and  Amendment  X 
emphasizes  the  fact  that  the  federal  government  has  under 
the  constitution  only  the  powers  enumerated,  all  others  being 
reserved  to  the  states  or  to  the  people.  The  first  ten  amend- 
ments indicate  a  prevailing  distrust  of  the  power  which  the 
federal  government  might  attempt  to  exercise.     They  indicate 


§  2i]  Personal  Rights.  47 

anxiety  for  the  preservation  of  local  freedom  of  government, 
and  the  wish  to  rely  for  protection  of  personal  and  property 
rights  on  the  state  governments,  which,  it  was  evidently  as- 
sumed, would  be  safer  repositories  of  power  with  respect  to 
the  rights  of  their  citizens. 

But  even  in  the  constitution  as  originally  adopted,  some 
restraint  was  imposed  upon  the  states  in  behalf  of  the  personal 
security  of  the  people.  For  example,  it  is  provided  (Art.  I, 
§  10)  that  no  state  shall  "pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts."  And 
after  the  Civil  War,  as  a  means  of  making  permanent  the  per- 
sonal liberty  which  had  accrued  to  individuals  of  the  negro 
race,  three  amendments  were  adopted,  limiting  in  very  impor- 
tant respects  the  powers  of  the  states  with  reference  to  the 
civil  and  political  rights  of  their  citizens.  By  Amendment 
XIII  (1865)  slavery  was  prohibited.  By  Amendment  XIV 
(1868)  citizenship  in  the  states  as  well  as  in  the  Union  as  a 
whole  was  defined,  and  abridgment  of  the  privileges  or  im- 
munities incident  to  citizenship  forbidden  ;  and  the  states  were 
also  prohibited  from  depriving  any  person  of  life,  liberty,  or 
property  without  due  process  of  law,  or  denying  to  any  person 
the  equal  protection  of  the  laws.  By  Amendment  XV  (1870) 
the  states  were  restrained  from  denying  or  abridging  the  right 
of  suffrage  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

The  adoption  of  these  three  amendments  indicated  a  shift- 
ing of  responsibility  for  the  protection  of  the  citizen  against 
the  undue  exercises  of  governmental  authority  by  a  state 
government  from  the  state  itself  to  the  federal  government. 
The  controlling  consideration  no  doubt  was  the  purpose  to 
guarantee  to  the  negroes  the  same  civil  and  political  rights 
accorded  under  the  laws  of  any  state  to  the  white  citizens  of 
that  state.  But  the  ultimate  result,  especially  of  Amendment 
XIV,  has  been  to  place  personal  and  property  rights  largely 
within  the  protection  of  the  federal  government.  The  guaranty 
of  due  process  of  law  and  the  equal  protection  of  the  laws, 
found  in  that  amendment,  has  been  broadly  invoked  as  a  pro- 


48  Relations  of  Governments.  [§  22 

tection  against  state  legislation  which  would  result  in  an  undue 
restriction  in  any  respect  of  the  exercise  of  personal  liberty, 
or  the  ownership  and  profitable  employment  of  property,  and 
also  as  against  unwarrantable  discriminations  between  classes 
of  persons  in  the  enjoyment  of  personal  and  property  rights. 
It  is  not  to  be  assumed,  however,  that  prior  to  the  adoption 
of  Amendment  XIV,  personal  and  property  rights  were  not 
protected  against  arbitrary  exercise  of  state  power.  Guaran- 
ties of  due  process  of  law  and  the  equal  protection  of  the  laws 
were  already  found  in  the  constitutions  of  the  different  states. 
But  this  amendment  to  the  federal  constitution  gives  to  those 
persons  who  are  entitled  to  the  protection  of  the  laws,  and  the 
enjoyment  of  the  privileges  of  citizenship,  the  uniform  security 
afforded  by  the  specific  provisions  of  the  federal  constitution 
itself,  and  a  resort  to  the  legislative,  executive,  and  judicial 
power  of  that  government  for  the  protection  of  the  rights  thus 
guaranteed  as  against  infringement  by  state  action.  (See 
below,  ch.  xliv.) 

22.    Bills  of  Rights  in  State  and  Federal  Constitutions. 

In  the  first  constitutions  of  the  states,  adopted  just  before  or 
immediately  after  independence,  and  in  nearly  all  the  state 
constitutions  adopted  later,  either  during  the  Revolutionary 
period  or  subsequently,  a  special  enumeration  is  made  of  rights 
of  the  people  which  are  not  to  be  infringed  by  the  government 
set  up  by  the  constitution.  These  enumerations  are  sometimes 
called  "  declarations  of  rights  "  and  sometimes  "  bills  of  rights." 
But  whether  introduced  by  any  such  formal  title,  or  embodied 
without  separate  designation,  they  are  intended  as,  and  con- 
stitute, distinct  limitations  on  the  powers  of  the  state  govern- 
ment. The  terms  "  declaration  of  rights  "  and  "  bill  of  rights  " 
are  borrowed  from  English  history,  the  instrument  known  as 
the  Declaration  of  Rights  having  been  promulgated  by  Parlia- 
ment in  1688,  and  presented  to  William  and  Mary,  who  were 
jointly  succeeding  to  the  throne  of  England,  in  consequence 
of  the  dethronement  of  James  II  by  Parliament  and  the  exclu- 
sion of  his  heirs  from  the  succession.     The  Bill  of  Rights  wa? 


§  22]  Bills  of  Rights.  49 

adopted  by  Parliament  and  approved  by  William  and  Mary  in 
the  year  1689,  as  a  statement  of  some  of  the  fundamental 
principles  which  should  be  recognized  by  them  in  the  adminis- 
tration of  the  government.  It  recites  the  grievances  which 
had  already  been  set  forth  in  the  Declaration  of  Rights,  and 
declares,  among  other  things,  that  the  power  to  suspend  or 
dispense  with  the  laws,  or  the  execution  thereof,  is  illegal; 
that  money  can  be  levied  only  by  act  of  Parliament ;  that  the 
right  to  petition  shall  be  preserved ;  that  standing  armies  shall 
not  be  raised  or  kept  within  the  kingdom  in  time  of  peace 
without  the  consent  of  Parliament ;  that  the  right  to  bear  arms 
and  freedom  of  speech  and  of  the  press  shall  be  protected ; 
that  excessive  bail  shall  not  be  required,  nor  cruel  or  unusual 
punishments  inflicted,  etc.  The  corresponding  declarations 
or  bills  of  rights  found  in  the  various  state  constitutions  in- 
clude similar  declarations,  and  others  more  fundamental  and 
pertinent.  They  are,  of  course,  not  uniform  as  to  the  subjects 
to  which  they  relate  ;  but  in  most  of  them  are  important  guar- 
anties of  jury  trial,  procedure  according  to  due  process  of  law, 
guaranties  of  personal  and  property  rights,  freedom  of  speech 
and  of  the  press,  and  the  like.  So  far  as  these  provisions  have 
been  the  subject  of  subsequent  judicial  controversy,  they  will 
be  hereafter  referred  to. 

It  may  also  be  noticed  as  a  matter  of  constitutional  history 
that,  even  before  the  adoption  of  state  constitutions,  the  rights 
of  the  people  of  the  colonies  to  the  guaranties  of  personal  liberty 
found  in  the  English  Declaration  of  Rights  had  been  fre- 
quently asserted,  as,  for  instance,  in  the  Declaration  adopted 
by  the  first  Continental  Congress,  and  in  the  Declaration  of 
Independence. 

The  federal  constitution,  as  originally  adopted,  contained 
some  express  limitations  on  the  states,  such  as  that  "  no  state 
shall  make  anything  but  gold  and  silver  coin  a  legal  tender  in 
the  payment  of  debts;  emit  bills  of  credit;  .  .  .  pass  any 
bill  of  attainder  or  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts  "  (Art.  I,  §  10),  and  also  some  limita- 
tions   which    are    general    in    their    terms,  such    as    that    the 

4 


50  Relations  of  Governments.  [§  22 

privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended ;  no  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed ;  and  no  tax  or  duty  shall  be  laid  on  exports  (Art.  I, 
§9).  It  is  evident  that  these  general  limitations  are  on 
the  federal  government,  and  not  on  the  states,  so  far  as  the 
states  are  not  mentioned ;  for  it  would  have  been  useless  to 
provide  in  section  10  that  no  state  shall  pass  any  bill  of  attain- 
der or  ex  post  facto  law,  if  the  general  provision  in  section  9 
that  no  bill  of  2XX.^\Vidi&x  ox  ex  post  facto  law  shall  be  passed 
was  intended  to  be  applicable  to  the  states  as  well  as  the  fed- 
eral government.  Therefore  the  rule  of  construction  has  been 
that  general  limitations  in  the  federal  constitution  are  applicable 
to  the  federal  government  only,  and  not  to  the  states,  unless  the 
states  are  expressly  referred  to  (^Barron  v.  Baltimore).  But 
these  limitations  in  the  federal  constitution,  as  originally  adopted, 
were  not  broad  enough  in  their  scope  to  constitute  a  bill  of 
rights  in  any  proper  sense. 

Of  the  ten  amendments  adopted  soon  after  the  constitution 
went  into  effect  the  first  eight  contain  provisions  analogous  to 
those  usually  found  in  the  bills  of  rights  of  the  state  constitu- 
tions. Without  now  enumerating  or  discussing  the  provisions 
of  these  amendments  in  detail,  it  is  sufficient  to  say  that  they 
relate  to  freedom  of  religion ;  right  to  bear  arms ;  the  quarter- 
ing of  soldiers  in  time  of  peace ;  protection  against  searches 
and  seizures  except  upon  warrant  duly  issued ;  procedure  in 
criminal  cases ;  and  the  right  to  trial  by  jury  in  civil  cases. 
It  is  clear,  from  the  history  of  the  discussion  which  led  to  their 
adoption  and  the  arguments  presented  in  support  thereof,  that 
they  relate  to  the  federal  government,  and  not  to  the  govern- 
ments of  the  states ;  that  is  to  say,  wlien  it  is  provided  that 
the  right  of  people  to  bear  and  keep  arms  shall  not  be  in- 
fringed, it  is  intended  to  say  that  the  government  of  the 
United  States  shall  not  interfere  with  that  right ;  and  likewise, 
when  it  is  provided  that  no  person  shall  be  held  to  answer  for 
a  capital  or  otherwise  infamous  crime,  unless  on  the  present- 
ment or  indictment  of  a  grand  jury,  it  is  intended  that  indict- 
ment   shall  be   necessary  in   the  federal  courts,  in   cases  for 


§  22]  Bills  of  Rights.  51 

infraction  of  federal  law,  no  reference  being  made,  either 
expressly  or  by  implication,  to  procedure  in  the  state  courts 
in  criminal  cases ;  and  further,  when  it  is  said  that  in  suits  at 
common  law,  the  right  of  trial  by  jury  shall  be  preserved,  the 
states  are  not  thereby  restrained  from  providing  for  trials  with- 
out a  jury  in  state  courts.  The  first  eight  amendments  to  the 
federal  constitution  are  therefore  to  be  interpreted  as  limita- 
tions on  the  federal  power,  and  in  no  sense  as  having  refer- 
ence to  the  power  of  the  states.  Indeed,  for  all  practical 
purposes  it  would  have  been  unnecessary  to  embody  such  provi- 
sions in  the  federal  constitution,  for  similar  provisions  were  at 
that  time  found  in  the  constitutions  of  most  of  the  states.  But 
when  it  was  sought  to  change  some  of  the  state  constitutions, 
so  as  to  provide  for  trial  of  accused  persons  on  criminal 
charges,  made  in  some  other  method  than  by  indictment,  it 
became  very  material  to  determine  whether  the  states  were  in 
this  respect  restricted  by  the  provisions  of  the  federal  consti- 
tution, and  it  was  definitely  settled  by  the  decision  of  the 
Supreme  Court  of  the  United  States  in  the  case  of  Hurtado  v. 
California  (1884)  that,  so  long  as  no  express  limitations  on 
state  power  were  violated,  the  states  might,  for  their  own  tribu- 
nals, adopt  any  provisions  as  to  procedure  in  criminal  cases  that 
they  should  think  wise  or  expedient.      (See  below,  ch.  xlii.) 

It  has  been  argued  that  the  adoption  of  Amendment  XIV, 
in  which  it  is  provided  that  no  state  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  the  citi- 
zens of  the  United  States,  rendered  the  first  eight  articles  of 
amendment  to  the  federal  constitution  binding  on  the  states, 
the  theory  being  that  these  articles  enumerated  privileges 
and  immunities  which,  by  Amendment  XIV,  the  states  were 
prohibited  from  abridging.  But  this  argument  has  not  been 
sustained  ;  and  in  Maxwell  v.  Dow,  and  Twining  v.  New  Jersey 
the  construction  originally  adopted,  that  the  first  eight  articles 
of  amendment  are  in  the  nature  of  a  bill  of  rights  with  refer- 
ence to  the  federal  government  and  the  federal  government 
alone,  has  been  adhered  to. 

One    question,    however,    remains    unsettled,    and    that   is 


52  Relations  of  Governments.  [§22 

whether  the  first  eight  amendments  to  the  federal  constitution 
apply  to  legislation  by  or  proceedings  in  the  courts  of  terri- 
tories or  territorial  possessions  of  the  United  States.  To 
understand  the  difficulties  surrounding  the  solution  of  this 
question,  it  must  be  borne  in  mind  that  the  federal  constitu- 
tion was  adopted  by  the  people  of  the  original  thirteen  states, 
and  that  it  evidently  contemplates  and  is  drawn  with  reference 
to  a  federal  government,  the  subjects  of  which  are  citizens 
of  states.  As  has  already  been  pointed  out  (see  above,  §  16), 
the  powers  of  the  federal  government  as  to  citizens  of  states 
are  limited.  But  Congress  is  given  authority  to  make  "  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States "  (Const.  Art.  IV, 
§  Sf%  2).  And  under  this  grant  of  power  it  has  been  held 
that  Congress  can  create  territorial  governments,  and  provide 
at  its  discretion  for  the  government  of  territory  of  the  United 
States  in  which  no  territorial  government  has  been  provided 
for.  (See  below,  ch.  xxxii.)  Those  who  live  within  the  limits 
of  such  organized  or  unorganized  territory,  and  not  within  the 
limits  of  states,  are  governed  entirely  by  the  federal  govern- 
ment, or  territorial  governments  created  by  it.  Further,  it  is 
to  be  noticed  that,  so  far  as  the  first  eight  amendments  relate 
to  procedure  in  courts,  they  apply  to  the  federal  courts,  prop- 
erly speaking,  that  is,  to  the  courts  created  in  pursuance  of 
Article  III  of  the  constitution,  and  not  to  the  courts  of  the 
states.  Now  whether  these  eight  amendments  apply  to  terri- 
torial or  other  courts  created  directly  or  indirectly  under  the 
authority  of  Congress  to  legislate  for  the  territories,  has  been 
a  subject  of  much  controversy.  On  the  one  hand  it  has 
been  said  that  the  constitution  was  evidently  not  drawn  with 
any  special  reference  to  permanent  possession  by  the  United 
States  of  territory  not  incorporated  into  states;  and  on  the 
other  hand  that  the  constitution  as  a  whole  is  a  limitation  on 
the  power  of  Congress  exercised  for  any  purpose.  It  has 
recently  been  decided  by  the  Supreme  Court  of  the  United 
States,  however,  that  the  provisions  as  to  the  right  of  jury  trial 
in  civil  cases,  and  by  inference  other  provisions  found  in  the 


§22]  Bills  of  Rights.  53 

first  eight  amendments,  are  not  applicable  to  procedure  in 
courts  created  under  Act  of  Congress  for  the  government  of 
the  Philippine  Islands  {Dorr  v.  United  States).  The  con- 
clusion reached  in  that  case  warrants  the  general  statement 
that  the  limitations  as  to  methods  of  procedure  are  not  appli- 
cable in  proceedings  before  territorial  courts,  save  so  far  as 
they  may  have  been  made  applicable  by  act  of  Congress. 

The  last  three  amendments  to  the  federal  constitution  are 
very  different  in  their  scope  and  purposes  from  those  of  the  first 
eight.  Amendment  XIII,  prohibiting  slavery  or  involuntary 
servitude,  is  applicable,  not  only  to  the  federal  government,  but 
also  to  state  governments  and  to  individuals  as  well;  by  its 
language  it  reaches  into  every  place  within  the  United  States 
or  subject  to  its  jurisdiction.  Amendment  XV,  prohibiting  the 
denial  or  abridgment  of  the  right  to  vote  on  account  of  race, 
color,  or  previous  condition  of  servitude,  expressly  applies  to 
both  the  federal  and  state  governments.  Amendment  XIV 
contains  various  provisions,  some  of  them  expressly  applicable 
to  the  states,  others  to  both  the  federal  and  state  governments. 
These  three  articles  are  not  in  any  proper  sense  a  portion  of  the 
bill  of  rights  of  the  federal  constitution. 


CHAPTER   IV. 

RELATIONS    OF   DEPARTMENTS   OF   GOVERNMENT  TO 
EACH   OTHER. 

23.    References. 

Distribution  of  Powers:  T.  M.  Cooley,  Constitutional  Limitations, 
**  87-92;  The  Federalist,  Nos.  47,  48,  51;  T.  M.  Cooley,  Constitutional 
Law,  ch.  iii ;  H.  C.  Black,  Constitutional  Law,  ch.  v ;  Kilbourn  v. 
Thompson  (1880, 103  U.  S.  168) ;  W.  Blackstone,  Commentaries,  I,  ch.  ii  ; 
Montesquieu,  Spirit  of  Laws  (Nugent's  Trans.)  Book  XI,  ch.  vi ;  A.  B. 
Hart,  Actual  Governnietit  (Amer.  Citizen  Series),  §  53;  E.  C.  Mason, 
Veto  Power  ;  J.  B.  Thayer,  Cases  on  Constitutional  Law,  i. 

Independence  of  Executive  :  Marbury  v,  Madison  (1803,  i  Cranch, 
137 ;  I  Curtis'  Decisions,  368  ;  Marshall's  Decisions  (Dillon's  ed.),  1 ) ; 
Mississippi  y,  Johnson  (1866,  4  Wallace,  475;  McClain's  Cases,  102; 
Thayer's  Cases,  196);  Georgia  v.  Stanton  (1867,  6  Wallace,  50;  Thayer's 
Cases,  201) ;  State  ex  rel.  v.  Stone  (1894,  120  Mo.  428;  McClain's  Cases, 
105) ;  State  ex  rel.  v.  Nash  (1902,  66  Ohio,  612  ;  64  N.  E.  Rep.  558) ;  United 
States  ex  rel.  v.  Black  (1888,  128  U.  S.  540 ;  McClain's  Cases,  109). 

Legislature  cannot  exercise  Judicial  Power  :  T.  M.  Cooley, 
Constitutional  Limitations,  **  87-92,  392;  Taylor  \ .  Place  {1^46,  4  R.  I. 
324;  Thayer's  Cases,  159;  McClain's  Cases,  79). 

Judges  can  discharge  only  Judicial  Functions  :  Case  of  Super- 
visors of  Elections  (1873,  'H  Mass.  247;  McClain's  Cases,  113);  State 
ex  rel.  v.  Barker  (1902,  116  Iowa,  96;  89  N,  W.  Rep.  204). 

Legislative  Power  cannot  be  delegated  :  Rice  v.  Foster  (Del.,  4 
Harrington,  492);  Santo  v.  State  (1856,  2  Iowa,  203);  Geebrick  v.  State 
(1857,  5  Iowa,  491;  McClain's  Cases,  88);  Dalby  v.  ^^^(1862,  14 
Iowa,  228;  McClain's  Cases,  91)  ;  Stone  v.  Charleston  (1873,  ^H  Mass. 
214 ;  McClain's  Cases,  93) ;  Fields.  Clark  (1892,  143  U.  S.  649;  McClain's 
Cases,  95). 

Impeachment  of  Officers  :  J.  Story,  Constitution,  §§  688,  689,  742- 
813;  J.  R.  Tucker,  Constitution,  §§  198-201;  J.  N.  Pomeroy,  Constitti- 
tional  Law,  480-494;  S.  F.  Miller,  Constitution  of  the  United  States,  171, 
213;  The  Federalist,  No.  65;  T.  M.  Cooley,  Principles  of  Constitutional 
Law  (3d  ed.),  177,  178  ;  H.  C.  Black,  Constitutional  Law,  §§  82-84 ;  R. 
Foster,  Constitution  of  United  States,  ch.  xiii ;  A.  B.  Hart,  Actual  Goverti' 

54 


§  24]  Departments  Independent.  ^^ 

ment  (Amer.  Citizen  Series),  §  139 ;  H.  Hallam,  Constitutional  History 
of  England  (Am.  ed.  1893),  I,  350,  351,  364;  W.  Blackstone,  Commen- 
taries, IV,  ch.  xix ;  James  Wilson,  Lectures  on  Jurisprudence  (Andrews' 
ed.),  II,  44. 

Checks  and  Balances  :  T.  M.  Cooley,  Constitutional  Limitations, 
**  34»  35  >  T-  M.  Cooley,  Principles  of  Constitutional  Law,  ch.  vii. 

24.    Departments  Independent. 

The  division  of  the  powers  of  government  among  the  three 
departments,  executive,  legislative,  and  judicial,  rests  on  the 
assumption  that  while  no  one  of  them  is  in  itself  sovereign  and 
unlimited  in  authority,  yet  each  is  independent  of  the  others. 
The  theory  involves,  first,  a  limitation  of  each  department  to 
its  own  sphere  of  action  ;  and,  secondly,  absolute  independence 
and  supremacy  within  that  sphere.  This  principle  of  exclusion 
is,  however,  rather  a  general  principle  than  a  rule  of  exact  ap- 
plication. The  functions  of  the  three  departments  of  govern- 
ment do  necessarily,  to  some  extent,  overlap.  The  legislature 
not  only  makes  the  laws  which  the  executive  enforces,  and 
which  the  judiciary  applies  in  the  determination  of  contro- 
versies, but  it  has  the  exclusive  power  of  taxation  and  appro- 
priation of  money,  and,  for  the  funds  necessary  to  carry  on  the 
other  branches  of  the  government,  those  branches  are  therefore 
dependent  upon  the  legislature.  On  the  other  hand,  the 
executive  department  controls  the  military  force,  and  for  the 
protection  which  the  legislature  and  the  judiciary  may  require, 
they  are  dependent  on  the  executive.  Furthermore,  each  de- 
partment in  the  performance  of  the  functions  assigned  to  it 
may  have  occasion  to  exercise  powers  and  duties  analogous  to 
those  of  the  other  departments;  for  instance,  the  executive 
department,  in  determining  whether  money  shall  be  collected 
for  taxes  or  claims  paid  out  of  appropriations,  must  often 
decide  judicial  questions  ;  and  the  judicial  department,  on  the 
other  hand,  in  repressing  interruption  or  preventing  interference 
with  its  proceedings,  or  in  providing  the  material  means  for 
carrying  on  its  operations,  may  exercise  functions  analogous  to 
those  of  the  executive  or  the  legislature.  It  will  not,  therefore, 
be  possible  to  draw  any  very  definite  line  between  the  functions 


56  Relations  of  Departments.  [§  25 

of  the  three  departments,  although  some  important  questions 
affecting  their  relations  have  been  definitely  settled  and  should 
be  well  understood. 

25.    Independence  of  the  Executive. 

All  executive  officers  are  under  obligation  to  recognize  and 
enforce  the  laws  made  by  the  legislative  department  within  its 
proper  sphere  of  action ;  and  subordinate  executive  officers, 
such  as  the  secretaries  or  heads  of  departments,  may  be  com- 
pelled by  proceedings  in  court  to  perform  duties  which  are 
purely  ministerial,  and  may  be  held  liable  in  damages  for  in- 
juries suffered  by  private  persons  by  reason  of  the  failure  to 
discharge  legal  duties  affecting  the  rights  of  such  persons.  If, 
however,  the  duty  imposed  upon  the  inferior  executive  officer 
is  one  involving  the  exercise  of  discretion  —  and  many  duties 
thus  imposed  are  of  this  character  —  then,  while  he  may  be 
required  to  act,  he  cannot  be  controlled  in  the  exercise  of  the 
discretion  imposed  upon  him  by  law,  nor  can  he  be  held  hable 
in  damages,  if  his  discretion  is  exercised  in  good  faith  and  on 
a  proper  occasion. 

As  to  the  chief  executive,  it  has  generally  been  considered 
that  the  independence  of  the  executive  department,  while 
it  does  not  exempt  him  from  the  obligation  to  respect  the  law, 
does  require  that  he  be  free  from  interference  on  the  part  of 
the  judicial  department.  Thus,  courts  cannot  compel  the 
execution  of  a  grant  of  land  by  the  executive,  although  it  is 
required  by  law ;  nor  can  they  enforce  his  attendance  in  court 
or  before  a  grand  jury  as  a  witness  {Sta/e  v.  Stone).  But  on 
these  questions  there  is  difference  of  opinion  among  the  courts, 
some  being  inclined  to  insist  that,  as  no  officer  is  too  high  to 
be  amenable  to  law,  the  courts  can  compel  the  observance  of 
law  by  the  chief  executive  as  well  as  by  any  other  person ; 
whilst  others  insist  that  it  would  be  an  interference  on  the  part 
of  the  judiciary  with  executive  independence  if  the  chief 
executive  were  coerced  as  to  his  official  action  by  the  orders 
of  a  court,  or  prevented  from  performing  his  high  executive 
functions  by  imprisonment.     However,  any  clashing  of  author- 


§  25]  Executive  Independence.  57 

ity  between  the  executive  and  the  judiciary  has  usually  been 
avoided  by  the  exercise  of  wise  forbearance  and  mutual  dis- 
cretion. For  instance,  the  president  or  a  governor  will  not 
refuse  to  give  testimony  in  a  proper  case  pending  in  court  in 
which  his  evidence  is  sought,  though  he  might  insist  that  he 
cannot  be  compelled  to  do  so ;  and  the  courts,  on  the  other 
hand,  will  not  issue  compulsory  process  against  such  an  officer, 
though  they  may  request  his  presence  for  the  giving  of  testi- 
mony on  a  proper  occasion.  It  is  always  to  be  borne  in  mind 
that  the  executive  is  vested,  under  the  constitution,  with 
independent  power  and  discretion,  and  that  he  cannot  by  any 
legal  process  be  compelled  to  submit  to  inquisition  on  the  part 
of  the  courts  as  to  matters  solely  within  the  proper  scope  of 
the  discharge  of  his  executive  duties,  nor  dictated  to  with 
reference  to  such  matters  by  the  courts,  or  even  the  legislature. 

Fortunately  the  occasion  has  seldom  arisen  for  considering 
how  far  the  courts  may  proceed  against  an  individual  who  is 
vested  with  supreme  executive  authority,  for  acts  or  conduct 
not  official  in  character.  He  may  be  sued  as  any  other  indi- 
vidual, and  his  private  property  may  be  taken  to  satisfy  a 
judgment.  Whether  he  could  be  arrested,  tried,  and  punished 
by  imprisonment,  while  holding  his  official  position,  for  crimes 
committed  by  him  as  an  individual,  and  not  in  connection  with 
his  official  duty,  may  well  be  left  unsettled  until  some  occasion 
arises  for  the  determination  of  the  question.  No  such  difficulty 
exists  with  reference  to  subordinate  executive  officers.  They 
are  in  every  respect  fully  amenable  to  the  judiciary.  No  com- 
mands of  superior  officials  will  excuse  them  for  violations  of 
law,  nor  will  any  plea  of  interference  with  the  performance  of 
official  duty  be  sufficient  to  exempt  them  from  obeying  the 
process  of  the  courts.  It  may  well  be  assumed  that  necessary 
executive  functions  can  be  otherwise  discharged,  although 
they  as  individuals  are  incapacitated  from  performing  them 
{Marbury  v.  Madison) . 

The  chief  executive  and  other  officers  are  subject  to  removal 
from  office  on  impeachment  by  the  legislative  department  for 
crimes   and   misconduct   while    in   office,  and  this  power  of 


58  Relations  of  Departments.  [§  26 

supervision  on  the  part  of  the  legislative  department  over  the 
executive  has  sometimes  been  suggested  as  evidence  of  the 
subordination  of  the  executive  to  the  power  of  the  legislature. 
But  in  discharging  the  power  of  impeachment  and  trying  the 
officer  for  the  crime  or  misconduct  alleged  against  him,  the 
branches  of  the  legislative  department  act  rather  in  a  judicial 
than  a  legislative  capacity.  The  court  of  impeachment,  con- 
sisting of  the  senate  in  the  case  of  a  federal  officer,  and  usually 
of  the  higher  branch  of  the  state  legislature  in  the  case  of  a 
state  officer,  does  not  act  as  a  legislative  body,  but  proceeds 
in  accordance  with  the  provisions  of  the  federal  or  state  con- 
stitution, as  the  case  may  be,  to  determine  whether  the  officer 
charged  has  been  guilty  of  the  crime  or  misconduct  alleged, 
and  whether,  in  consequence  thereof,  he  shall  be  removed  from 
office.  (See  below,  §  28.)  In  this  there  is  no  infringement  by 
the  legislative  department  of  executive  independence. 

It  has  already  been  pointed  out  (see  above,  §  7)  that  there  are 
many  political  questions  and  questions  affecting  international 
relations,  as  to  which  the  action  of  the  executive  department 
is  conclusive,  and  cannot  be  reviewed  or  passed  upon  by  the 
courts. 

26.    The  Legislature  Cannot  Exercise  Judicial  Power. 

The  independence  of  the  different  departments  of  government 
is  especially  emphasized  with  reference  to  the  functions  of  the 
judiciary.  It  is  a  fundamental  principle  of  constitutional  gov- 
ernment that  the  courts,  which  are  organized  for  the  purpose 
of  deciding  controversies,  shall  be  free  from  bias  or  extraneous 
influence,  and  that  judicial  questions  shall  be  determined  by 
the  courts,  and  not  by  the  executive  or  the  legislature.  There- 
fore it  is  fully  recognized  that  under  our  system  of  government 
questions  which  are  in  their  nature  essentially  and  necessarily 
judicial  cannot  be  passed  upon  save  by  judicial  tribunals ;  and 
the  decisions  of  such  tribunals  are  final  and  cannot  be  reviewed 
by  any  other  department  of  the  government.  Neither  the 
legislature  nor  the  executive  can,  as  between  adverse  claimants 
to  property,  vest  the  title  in  the  one  or  the  other,  and  thus  in 


§2/]  Judicial  Independence.  59 

effect  adjudicate  the  ownership  of  the  property ;  nor  can  the 
legislature  determine  that  an  individual  has  been  guilty  of 
crime,  and  subject  him  to  punishment  therefor  without  a  judi- 
cial trial.  These  principles  are  involved  in  the  usual  constitu- 
tional guaranties  of  due  process  of  law  and  prohibition  of  bills 
of  attainder ;  but  a  fuller  exposition  of  them  will  be  given  in 
another  place.  (See  below,  §§  228,  258.)  However,  an 
important  application  of  these  principles  should  be  noticed 
here,  involving  the  power  of  the  legislature  to  interfere  with 
the  judgments  of  the  courts.  It  is  well  settled  that  when  a 
judgment  has  been  rendered,  the  legislature  cannot  by  a  statu- 
tory enactment  undo  what  the  courts  have  done,  or  reverse 
their  decisions.  For  instance,  although  the  legislature  may 
authorize  new  trials,  it  cannot  provide  for  a  new  trial  in  a  case 
already  tried ;  and  although  it  may  provide  for  appeals,  it 
cannot  of  its  own  authority  in  a  particular  case  review  or 
reverse  a  decision  of  a  court. 

Some  judicial  authority  is  exercised  in  England  by  the 
House  of  Lords,  but  in  so  acting  it  is  a  court,  and  not  a 
legislative  body.  Likewise  at  one  time  in  New  York  the 
senate  was  a  court  for  the  correction  of  errors,  to  which  appeals 
might  be  taken  from  the  courts  of  the  state,  but  this  also  was 
the  exercise  of  judicial,  and  not  legislative,  functions.  Legis- 
lative divorces  have  been  recognized  as  valid  in  some  of  the 
states,  it  being  considered  that  the  power  to  grant  a  divorce 
was  not  a  judicial  power ;  but  in  many  of  the  states,  there  are 
now  constitutional  prohibitions  of  legislation  with  reference  to 
granting  divorces  in  specific  cases,  although,  of  course,  the 
legislature  may  provide  the  laws  in  accordance  with  which 
divorces  may  be  granted  by  the  courts. 

27.    Judges  of  Courts  Cannot  Exercise  Executive  Functions. 

The  independence  of  the  judiciary,  which,  as  suggested  in 
the  last  section,  has  been  preserved  with  peculiar  care,  involves 
also  the  exemption  of  the  judges  of  the  courts  from  any  obliga- 
tion to  perform  functions  which  are  not  judicial.  There  are 
in  many  states  inferior  tribunals  of  a  mixed  character^  such  as 


6o  Relations  of  Departments.  [§  28 

the  so-called  county  courts,  the  judges  of  which  have  adminis- 
trative as  well  as  judicial  powers ;  but  the  courts  provided  for 
by  the  constitutions  of  the  different  states  for  the  exercise  of 
judicial  power,  and  the  judges  thereof,  are  regarded  as  exempt 
from  any  duty  to  perform  functions  which  properly  belong  to 
other  departments  of  the  government.  Thus  the  judges  can- 
not be  required  to  act  as  commissioners  of  elections  (^Case  of 
Supervisors  of  Elections^  nor  as  trustees  for  the  administration 
of  municipal  works  such  as  waterworks  {State  v.  Barker) ,  or 
the  like ;  and  it  may  be  stated  as  a  general  proposition  that 
such  authority  cannot  be  exercised  by  them. 

28.    Impeachment  of  Officers  through  Legislatures. 

By  the  constitution  of  England,  Parhament  exercises  some 
restraint  on  the  power  of  the  king  by  means  of  the  impeach- 
ment of  the  king's  ministers,  the  officers  appointed  by  him  to 
discharge  important  functions  of  government.  This  power  is 
said  to  have  been  exercised  by  Parliament  as  early  as  the  year 
1376,  and  has  been  recognized  throughout  the  subsequent  con- 
stitutional history  of  Great  Britain  down  to  the  present  time, 
the  charge  being  presented  by  the  House  of  Commons  to  the 
House  of  Lords,  in  which  the  trial  for  the  offence  is  conducted. 
In  the  Act  of  Settlement  (1700),  the  king  was  expressly  pro- 
hibited from  exercising  the  power  of  pardon  with  reference  to  a 
charge  made  or  punishment  imposed  by  way  of  impeachment. 

This  power  of  Parliament  no  doubt  furnished  to  the  framers 
of  state  and  federal  constitutions  the  suggestion  of  a  means  by 
which  the  legislative  department  might  exercise  a  legitimate 
restraint  on  executive  power,  and  provision  is  made  in  many, 
if  not  all  the  state  constitutions,  as  well  as  in  the  constitution 
of  the  United  States,  for  the  removal  of  officers  by  the  higher 
branch  of  the  legislative  body  on  complaint  of  the  lower  branch. 
It  is  to  be  noticed,  however,  that  the  power  is  circumscribed 
by  our  written  constitutions  as  to  (i)  the  persons  who  may  be 
impeached,  (2)  the  misconduct  which  may  be  made  the  ground 
of  impeachment,  (3)  the  method  of  procedure,  and  (4)  the 
punishment  to  be  imposed. 


§  28]  Impeachment.  6i 

By  the  federal  constitution  (Art.  II,  §  4),  it  is  provided 
that  "The  president,  vice-president,  and  all  civil  officers  of  the 
United  States  shall  be  removed  from  office  on  impeachment 
for  and  conviction  of  treason,  bribery,  or  other  high  crimes 
and  misdemeanors,"  and  it  is  now  generally  conceded  that 
only  one  who  is  in  office  can  be  thus  proceeded  against,  and 
that  the  punishment  can  only  extend  to  his  removal  from 
office  and  disqualification  for  holding  office  in  the  future.  But 
he  may  be  tried  and  punished  by  the  courts  in  accordance 
with  law  for  any  crime  he  may  have  committed,  notwithstand- 
ing the  impeachment  (Art.  I,  §  3,  IF  7).  The  president's  power 
of  pardon  cannot  be  exercised  in  cases  of  impeachment  (Art. 
II,  §  2,1[i). 

There  has  been  much  uncertainty  as  to  the  grounds  for 
removal  by  impeachment.  Those  specified  in  the  federal  con- 
stitution are,  no  doubt,  exclusive  so  far  as  federal  officers 
are  concerned ;  but  it  may  now  be  regarded  as  settled  by 
practice  that  "  high  crimes  and  misdemeanors  "  may  include 
misconduct  in  office  which  does  not  in  itself  constitute  a 
crime. 

The  impeachment,  that  is,  the  accusation  against  the  officer, 
is  formulated  by  the  lower  branch  of  the  state  legislature  or  of 
Congress  and  presented  to  the  higher  branch,  which  acts  as  a 
court  for  the  trial  of  the  officer  on  the  charges  presented,  and 
in  the  case  of  the  United  States  Senate  there  is  a  special  pro- 
vision that  when  the  president  of  the  United  States  is  to  be 
thus  tried,  the  chief  justice  of  the  supreme  court  of  the  United 
States  shall  preside,  and  that  a  conviction  can  be  had  only 
upon  the  concurrence  of  two-thirds  of  the  members  present 
(Art.  I,  §  3,  IF  6). 

Any  attempt  on  the  part  of  the  legislative  department  to 
interfere  with  the  executive  department  by  removal  of  the 
president  or  other  executive  officer  on  accusations  not  involv- 
ing breach  of  duty,  as  distinct  from  the  exercise  of  a  legitimate 
discretion,  would  be  wholly  unwarranted  by  the  spirit  of  our 
constitutional  system,  and  fortunately  no  such  effort,  if  it  can 
properly  be  said  to  have  been  made,  has  ever  been  successful. 


62  Relations  of  Departments.  [§29 

But  final  authority  in  determining  the  sufficiency  of  the  grounds 
presented  is  with  the  legislative  body  before  which  the  officer 
is  put  on  trial,  and  the  courts  have  no  power  to  interfere  with 
the  proceedings  or  pass  upon  the  validity  of  the  action  taken. 

29.    Legislative  Power  may  not  be  Delegated. 

The  legal  principle  that  an  officer  or  agent  cannot  delegate 
to  another  the  powers  confided  to  him,  unless  authorized  to  do 
so,  is  specially  applicable  to  legislative  bodies.  Since  the 
power  to  make  laws  is  vested  in  the  legislative  department, 
and  involves  a  large  exercise  of  discretion  and  judgment  to  be 
discharged  by  those  directly  selected  for  that  purpose  by  the 
people,  it  is  properly  insisted  that  the  authority  thus  conferred 
cannot  be  transferred  to  any  other  person  or  body  of  persons, 
unless  authorized  by  the  cQnstitution.  Therefore,  it  is  well 
settled  that,  unless  in  the  state  constitution  there  is  some 
provision  made  for  a  referendum  (see  above,  §  4),  the  legisla- 
ture cannot  make  the  validity  of  a  statute  depend  upon  the 
result  of  a  popular  election,  in  which  the  voters  are  asked  to 
decide  whether  or  not  the  proposed  law  shall  go  into  effect 
{Ricev.  Foster ;  Geebrick  v.  State).  The  constitutional  power 
of  the  electors  with  reference  to  the  making  of  laws,  in  the 
absence  of  a  provision  for  referendum,  is  limited  to  the  selec- 
tion of  members  of  the  legislature,  in  whom  the  legislative 
authority  is  vested.  For  the  same  reasons,  it  is  well  settled 
that  Congress  cannot  delegate  to  the  president  the  power  to 
determine  whether  or  not  a  statutory  provision  shall  become 
a  law.  While  the  president  may  in  proper  form  approve  or 
veto  a  bill  which  has  passed  both  houses  of  Congress,  he 
cannot  be  given  authority,  in  his  own  judgment  and  dis- 
cretion, to  determine  whether  a  proposed  measure  shall  go 
into  effect.  A  statute  must  rest  for  its  authority  on  its  lawful 
adoption  by  the  houses  of  Congress  and  approval  by  the 
president,  and  not  merely  on  the  executive  authority. 

A  distinction  must  be  drawn,  however,  between  the  making 
of  laws,  and  the  provision,  by  means  of  laws  duly  made,  for 
the  exercise  of  authority  and  discretion  by  some  officer  or 


§  3o]  Delegation.  —  Checks  and  Balances.     63 

body^  exercised  in  accordance  with  the  provisions  of  such 
laws.  Thus,  the  legislature  of  a  State  may  by  statute,  duly 
enacted,  leave  it  to  be  determined  by  vote  in  cities  whether  or 
not  licenses  for  selling  liquor  shall  be  granted,  and  in  counties 
whether  domestic  animals  shall  be  allowed  to  run  at  large 
{Dalby  v.  Wolf),  and  Congress  may,  by  statute  regularly 
passed,  leave  it  to  the  president  to  decide  whether  retaliatory 
tariff  duties  shall  be  collected  on  goods  brought  from  a  par- 
ticular country  (Field  v.  Clark).  Moreover,  limited  legislative 
authority  may  be  directly  conferred  by  a  state  legislature  upon 
municipal  corporations,  such  delegation  of  authority  being  with- 
in the  implied  powers  of  the  legislative  department,  even 
though  not  expressly  recognized  in  the  constitution.  (See 
below,  §  97.) 

30.    Checks  and  Balances  in  our  Government. 

It  is  often  said  that  our  governmental  system  is  one  of 
checks  and  balances  for  the  purpose  of  restraining  the  undue 
exercise  of  power  by  the  government  or  its  officers,  the  theory 
being  that  unlimited  power  is  not  vested  in  any  department ; 
and,  to  the  degree  previously  set  forth  in  this  chapter,  this 
statement  is  measurably  true.  Each  department  of  government 
does,  in  a  sense,  serve  the  purpose  of  a  check  upon  the  others. 
While  the  legislative  department  cannot  directly  control  the 
action  of  the  executive  or  judiciary,  it  can,  by  virtue  of  its 
sole  power  to  provide  for  the  raising  and  expenditure  of  money, 
exercise  a  very  potent  influence  with  reference  to  executive 
and  judicial  action;  and  the  judiciary  department,  by  virtue 
of  its  authority  in  a  proper  case  to  pass  upon  the  vaHdity  of 
the  acts  of  the  legislature  or  the  executive,  can  restrain  those 
departments  within  the  scope  of  their  proper  functions.  Again, 
the  division  of  sovereignty  between  the  federal  and  the  state 
governments,  so  that  the  federal  government  has  supreme 
power  as  to  Hmited  subjects  of  a  federal  nature,  while  the  state 
governments  have  general  power  as  to  all  matters  not  placed 
in  the  control  of  the  federal  government,  makes  each,  to  some 
extent,  a  check  upon  the  other.     But  the  theory  of  checks  and 


/ 


64  Relations  of  Departments.  [§  30 

balances  must  not  be  interpreted  as  meaning  that  either  the 
state  or  federal  government  may  interfere  with  the  other  in 
the  proper  discharge  of  the  powers  conferred  upon  it;  nor 
with  the  well-established  rule  that  in  case  of  an  apparent  con- 
flict of  authority  between  a  state  and  the  federal  government, 
the  latter  has  the  ultimate  power  to  decide  upon  the  extent  of 
its  own  authority.  This  power  is  to  be  exercised,  it  is  true,  in 
accordance  with  the  provisions  and  limitations  of  the  constitu- 
tion, but  the  necessity  of  providing  some  tribunal  where  such 
conflicts  of  authority  may  be  authoritatively  decided  in  accord- 
ance with  the  constitution  and  the  law,  and  not  by  force 
or  revolution,  has  dictated  the  wise  provision  that  the  fed- 
eral judiciary  is  vested  with  this  ultimate  authority.  (See 
above,  §  19.)  In  other  words,  the  checks  which  federal  and 
state  governments  may  exercise  with  reference  to  each  other, 
and  likewise  those  which  are  vested  in  the  departments  of 
government,  are,  after  all,  merely  the  checks  which,  by  the 
constitution,  are  imposed  on  each;  and  the  whole  matter 
comes  to  this,  that  no  government,  or  department  of  govern- 
ment, can  constitutionally  exceed  the  authority  given  to  it,  nor 
act  otherwise  than  as  authorized  by  the  constitution. 


Part    II. 
Organization   of  Government. 


CHAPTER   V. 

LEGISLATIVE   DEPARTMENTS. 

31.    References. 

Joseph  Story,  Constitution,  §§  545-904,  1410-1488,  1963;  T.  M.  Cooley, 
Constitutional  Limitations,  ch.  vi ;  J.  R.  Tucker,  Constitution,  §§  186-212  ; 
i>^he  Federalist,  Nos.  52-63;  H.  C.  Black,  Constitutional  Laxu,  §§  141, 
144-148;*^  B.  Hart,  Actual  Government  [Amer.  Citizen  Series),  chs. 
vii,  xiii,  xiv  ;  James  Wilson,  Lectures  on  Jurisprudence  (Andrews'  ed.),  II, 
ch.  i  ;*James  Bryce,  American  Commonwealth,  I,  chs.  xix,  xl ;  Williamson 
V.  United  States  (1908,  207  U.  S.  425.) 

32.    Legislative  Branches. 

Under  the  constitution  of  England  as  it  has  existed  for 
several  centuries,  Parliament,  the  legislative  department  of  the 
government  of  Great  Britain,  is  composed  of  two  houses,  and 
their  concurrence  in  legislation  is  necessary.  The  member- 
ship of  the  upper  house  consists  of  lords,  both  secular  and 
ecclesiastical,  whose  titles  are  derived  from  the  crown,  and 
the  lower  branch,  or  House  of  Commons,  is  composed  of 
members  chosen  by  a  limited  suffrage.  In  the  colonial  gov- 
ernments there  was  usually  provision  for  some  sort  of  legisla- 
tive assembly  of  two  branches,  the  members  of  the  upper 
branch  being  appointed  by  the  king  or  his  representative,  the 
governor,  and  the  members  of  the  lower  branch  elected  by 
the  people.  It  was  natural,  therefore,  that  in  the  earhest 
5  65 


66  Legislative  Departments.  [§32 

state  constitutions,  as  well  as  in  the  federal  constitution,  it 
should  be  provided  that  the  legislative  power  should  be  vested 
in  an  assembly  consisting  of  two  branches,  the  higher  branch 
less  numerous  than  the  lower,  and  that  the  concurrence  of  the 
two  branches  should  be  essential  to  the  enactment  of  laws. 
This  so-called  bicameral  system  is  found  also  in  other 
countries,  and  possesses  some  theoretical  and  practical  ad- 
vantages which  have  been  sufficient  to  cause  it  to  be  retained 
in  the  formation  of  the  later  state  constitutions.  Indeed,  this 
system  is  so  fully  recognized  and  firmly  established  that  it 
may  be  regarded  as  a  part  of  our  plan  of  republican  gov- 
ernment. 

In  England  the  assent  of  the  king  to  legislation  proposed 
by  Parliament  has  always  been  regarded  as  essential,  and  it 
was  natural  that  the  approval  of  the  chief  executive  should 
likewise  be  required  in  the  state  and  federal  constitutions. 
But  in  England  the  king  is  not  a  part  or  component  ele- 
ment of  Parliament,  and  it  cannot  be  properly  said  that 
the  delegation  of  the  veto  power  to  the  executive  renders 
the  executive  a  branch  of  the  legislative  department  in  the 
matter  of  legislation.  The  functions  of  the  executive  in  ap- 
proving or  vetoing  proposed  legislation  will  therefore  properly 
be  discussed  in  one  of  the  chapters  relating  to  the  execu- 
tive power.  (See  below,  ch.  xxi.)  Although  in  Great  Britain 
and  also  in  the  colonial  governments  the  higher  branch  of 
the  legislative  body  was  composed  of  appointed  members, 
the  higher  branch,  under  our  system  of  government,  usu- 
ally called  the  Senate,  as  well  as  the  lower  and  more  numer- 
ous branch,  usually  called  the  House  of  Representatives,  is 
composed  of  members  selected  by  some  form  of  election ;  but 
the  qualifications  and  method  of  election  of  the  members  of 
the  higher  branch  may  be  somewhat  different  from  those  pro- 
vided in  case  of  members  of  the  lower  branch.  This  is 
especially  noticeable  with  reference  to  the  organization  of 
Congress,  the  senators  being  regarded  as  representatives  of  the 
states,  while  the  members  of  the  House  of  Representatives  are 
selected  by  vote  of  the  people  in  separate  districts  of  each  state. 


§33]  Branches.  —  Representation.  67 

33.    Legislative  Representation;  Election  and  Qualification 
of  Members ;  Privileges. 

For  the  purpose  of  selecting  senators  and  representatives  in 
the  state  legislature,  the  states  are  generally  divided,  under 
the  provisions  of  their  constitutions,  into  senatorial  and  rep- 
resentative districts,  and  from  each  one  or  more  members  are 
selected  for  the  respective  branches  of  the  legislative  body. 

By  the  constitution  of  the  United  States  it  is  provided  that 
two  senators  shall  be  chosen  in  each  state  by  the  legislature 
thereof  (Art.  I,  §  3,  1  i),  the  term  of  office  being  six  years. 
There  is  now  some  popular  agitation  in  favor  of  the  choice 
of  senators  by  popular  vote  instead  of  by  legislative  selec- 
tion, but  any  such  change  would  require  a  constitutional 
amendment.  In  case  a  vacancy  occurs  by  resignation  or 
otherwise,  while  the  legislature  of  the  state  is  in  session,  it  is 
filled  by  the  legislature,  but  if  a  vacancy  occurs  during  the 
recess  of  the  state  legislature,  the  executive  thereof  may  make 
a  temporary  appointment  until  the  next  meeting  of  the  legis- 
lature (Art.  I,  §  3,  t  2). 

The  members  of  the  House  of  Representatives  of  the  United 
States  are  chosen  every  second  year  by  the  people  of  the 
several  states  by  the  electors  of  the  state  having  the  qualifica- 
tions requisite  for  members  of  the  most  numerous  branch 
of  the  state  legislature  (Art.  I,  §  2,  ^  i).  The  number  of 
members  from  each  state  is  determined  by  the  enumeration 
in  the  census  taken  each  ten  years  of  the  whole  number  of 
persons  in  each  state,  excluding  Indians  not  taxed  (Art.  I, 
§  2,  f  3,  and  Amend.  XIV,  §  2).  Congress  determines  after 
each  census  the  number  of  members  of  which  the  House 
of  Representatives  shall  be  composed,  and  apportions  them 
among  the  various  states  in  proportion  to  population,  each 
state  being  entitled,  however,  to  at  least  one  representative. 
The  provision  of  the  Fourteenth  Amendment  that  representa- 
tion of  any  state  in  Congress  may  be  reduced  proportionally 
if  the  right  to  vote  is  denied  to  any  of  the  male  inhabitants 
of  such  state,  being  twenty-one  years  of  age  and  citizens  of 


68  Legislative  Departments.  [§  33 

the  United  States,  has  not  as  yet  been  the  subject  of  any 
final  action  on  the  part  of  Congress. 

By  federal  statute  (1901,  following  that  of  1872)  the  Repre- 
sentatives apportioned  to  each  state  are  to  be  elected  by  dis- 
tricts composed  of  contiguous  and  compact  territory,  and 
containing  as  nearly  as  practicable  an  equal  number  of  inhabit- 
ants, not  more  than  one  Representative  to  be  elected  from  any 
district.  But  even  under  this  plan  it  may  at  times  be  necessary 
(and  the  Act  so  provides)  to  elect  members  at  large  for  the 
whole  state  as  for  instance  where  the  representation  of  the  state 
has  been  changed  as  the  result  of  a  reapportionment,  and  the 
legislature  has  not  redistricted  the  state  accordingly. 

A  representative  in  Congress  must  have  attained  the  age  of 
twenty-five  years  and  have  been  for  seven  years  a  citizen  of 
the  United  States,  and  at  the  time  of  election  an  inhabit- 
ant of  the  state  in  which  he  is  chosen  (Art.  I,  §  2,  ^  2). 
Vacancies  are  filled  by  a  special  election  called  by  the  state 
executive  (Art.  I,  §  2,  ^  4). 

A  Senator  must  have  attained  the  age  of  thirty  years,  and 
have  been  for  nine  years  a  citizen  of  the  United  States,  and  at 
the  time  of  his  election  an  inhabitant  of  the  state  for  which  he 
is  chosen  (Art.  I,  §  3,  IT  3)-  Vacancies  are  filled  by  the  legisla- 
ture of  the  state  ;  but  in  case  of  a  vacancy  during  a  recess  of 
the  legislature  the  state  executive  may  make  a  temporary 
appointment  (Art.  I,  §  3,  ^  2). 

The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives  in  Congress  are  prescribed  in 
each  state  by  the  legislatures  thereof,  unless  Congress  makes 
provision  on  the  subject,  which  it  may  do,  except  as  to  the 
places  of  choosing  senators  (Art.  I,  §  4,  ^  i).  By  federal 
statutes  the  times  and  manner  of  electing  senators  and  rep- 
resentatives are  now  specifically  regulated  (Acts  of  1866, 
1871,  1872,  1901).  Senators  are  to  be  chosen  by  the  legisla- 
ture chosen  next  preceding  the  expiration  of  the  term  of  a 
senator,  and  on  the  second  Tuesday  after  its  organization  by  a 
majority  vote  of  each  house  voting  separately ;  but  if  the 
houses  do  not  agree  then  by  a  majority  vote  of  the  members 


§  33]  Representation.  69 

of  both  houses  in  joint  session.  Vacancies  are  to  be  filled 
by  the  legislature  in  the  same  manner.  The  result  of  the 
election  is  certified  by  the  executive,  countersigned  by  the 
secretary  of  state.  Representatives  are  to  be  chosen  by  dis- 
tricts on  the  Tuesday  after  the  first  Monday  of  November  of 
each  second  year  for  the  Congress  which  commences  the  next 
year.  Vacancies  are  to  be  filled  as  prescribed  by  the  laws  of 
the  respective  states.  The  control  of  elections  is  left  with  the 
states.     (See  below,  §  200.) 

By  statute  (181 7)  provision  has  been  made  for  the  election 
by  each  territory  of  a  delegate  to  Congress,  who  has  all  the 
privileges  of  a  member  except  the  right  to  vote. 

It  would  not  be  profitable  to  go  into  further  detail  as  to  the 
provisions  of  state  and  federal  constitutions  and  statutes  relat- 
ing to  representation  in  legislative  bodies.  It  is  sufficient  to 
say  in  general  that  these  questions  seldom  come  before  the 
courts,  for  the  reason  that  by  provision  of  most  of  the  state 
constitutions,  as  well  as  under  the  federal  constitution  (Art.  I, 
§  5,  ^  i)  each  house  of  a  state  legislature  or  of  Congress  is 
the  judge  of  the  elections,  returns,  and  qualifications  of  its  own 
members.  Contests  as  to  the  validity  of  elections  are  there- 
fore determined  by  the  house  in  which  membership  is  claimed, 
and  the  action  of  that  house  is  final  and  conclusive.  Each 
house  has  also  the  power  to  expel  a  member  for  such  cause  as 
it  may  deem  sufficient. 

By  provision  of  the  federal  constitution  (Art.  I,  §  6,  ^  i) 
senators  and  representatives  are  privileged  from  arrest  in  all 
cases  except  for  treason,  felony,  or  breach  of  the  peace  during 
attendance  at  the  sessions  of  their  respective  houses  and  in 
going  to  and  returning  from  the  same ;  and  they  are  also 
exempt  from  being  questioned  for  any  speech  or  debate  in 
either  house,  save  under  the  authority  of  the  house  itself;  and 
similar  privileges  are  granted  in  state  constitutions.  The  object 
of  the  privilege  from  arrest  is  to  exempt  members  from  being 
interfered  with  by  judicial  procedure  while  in  the  discharge  of 
their  duties.  At  other  times  and  in  other  respects  they  are 
subject  to  the  jurisdiction  of  the  courts  as  fully  as  private  per- 


7©  Legislative  Departments.  [§  35 

sons.  Indeed,  the  exemption  is  of  little  practical  value,  as 
arrest  or  seizure  of  the  person  is  no  longer  generally  authorized 
except  for  crime,  and  all  crimes  of  a  serious  nature  are  in- 
cluded within  the  description  of  treason,  felony,  and  breach 
of  the  peace.     (  Williamson  v.   United  States.) 

34.   Organization  and  Methods  of  Legislative  Business. 

By  the  federal  constitution  it  is  provided  that  Congress 
shall  assemble  at  least  once  in  every  year,  and,  in  the  absence 
of  statutory  provision  fixing  a  different  time,  the  regular  ses- 
sion shall  commence  on  the  first  Monday  in  (December  (Art. 
I,  §  4,  ^  2).  Each  house  determines  the  rules  of  its  pro- 
ceedings, and  has  authority  to  punish  its  members  for  dis- 
orderly behavior,  and,  by  a  two  thirds  vote,  expel  a  member 
(Art.  I,  §  5,  ^  2).  It  is  also  provided  that  each  house  shall 
keep  a  journal  of  its  proceedings  on  which  the  yeas  and  nays 
on  any  question  shall  be  entered  at  the  desire  of  one-fifth  of 
the  members  present  (Art.  I,  §  5,  f  3). 

Similar  provisions  are  found  in  state  constitutions ;  but  it  is 
not  desirable  to  consider  at  length  the  methods  of  legislative 
procedure,  nor  the  various  questions  of  parliamentary  law  which 
may  arise  with  reference  thereto.  These  are  matters  to  be 
determined  by  each  legislative  body  for  itself 

Each  house  of  the  legislature  chooses  its  own  officers,  save 
that  the  vice-president  of  the  United  States  is  president  of  the 
senate  (Art.  I,  §  3,  ^  4),  and  the  lieutenant-governor  or 
other  corresponding  elective  officer  is  president  of  the  state 
senate. 

35.   Methods  of  Enacting  Statutes. 

It  is  usually  provided  in  state  constitutions,  as  it  is  in  the 
federal  constitution  (Art.  I,  §  7,  ^  2),  that  a  bill  proposed  in 
either  house,  in  order  to  become  a  law,  must  be  passed  by 
both  houses  and  approved  by  the  executive,  or  passed  over 
his  veto  (see  below,  §  126),  and  the  passage  of  a  bill  by  either 
house  requires  the  approval  of  a  majority  of  the  members 
thereof  present   when   the   action    is   taken,   or   under   some 


§  35]  Methods  of  Enactment.  71 

state  constitutions  the  approval  of  a  majority  of  the  whole 
membership.  Each  house  acts  for  itself,  but  it  may  act  either 
on  bills  introduced  in  that  house,  which  after  passage  are 
transmitted  to  the  other  house  for  its  action,  or  on  bills 
which  have  passed  the  other  house  and  been  transmitted  to  it 
for  action.  In  the  absence  of  some  such  provision  as  that 
found  in  the  federal  constitution  (Art.  I,  §  7,  ^  i),  that  all 
bills  for  raising  revenue  shall  originate  in  the  lower  house, 
either  house  may  take  the  initiative  with  reference  to  any  kind 
of  legislation,  and  a  bill  which  has  passed  one  house  may  be 
amended  in  any  respect  by  the  other.  But  it  is  only  when 
the  same  identical  bill  has  passed  both  houses  without  change 
that  it  can  become  a  law.  The  enactment  of  a  bill  by  the  re- 
spective houses  of  a  legislative  body  is  finally  evidenced  by 
the  signature  of  the  presiding  officer  of  each,  and  such  signa- 
ture is  conclusive.  It  is  not  open  for  the  courts  in  determin- 
ing whether  a  statue  has  been  lawfully  enacted  to  go  behind  the 
signatures  of  the  presiding  officers  and  to  investigate  the  ques- 
tion whether  as  a  matter  of  fact  it  received  in  each  house  the 
necessary  number  of  votes. 

In  the  English  Parliament,  bills  were  originally  proposed  or 
submitted  by  or  in  behalf  of  the  sovereign,  but  the  present 
practice  in  Parliament,  and  in  all  legislative  bodies  in  this 
country,  is  that  bills  are  proposed  or  introduced  by  members 
as  they  see  fit,  and  are  acted  on  in  accordance  with  the  rules 
adopted  by  the  respective  houses  to  govern  their  procedure. 

There  is  no  specific  provision  in  the  federal  constitution  as 
to  the  time  when  a  statute  shall  take  effect ;  and  an  act  of 
Congress  is  therefore  deemed  to  be  effectual  and  in  force  from 
the  time  of  its  approval  by  the  president  unless  otherwise  pro- 
vided. This  is  also  the  rule  under  state  constitutions  con- 
taining no  specific  provision  on  the  subject.  But  in  some  of 
the  state  constitutions  it  is  provided  that  statutes  shall  go  into 
effect  either  at  the  end  of  a  specified  period  after  approval,  or 
at  a  fixed  date  subsequent  to  such  approval,  or  on  publica- 
tion in  a  specified  manner.  The  object  of  postponing  the 
taking  effect  of  the   statute  to   a  time  later  than  that  of  its 


72  Legislative  Departments.  [§  36 

enactment  and  approval  is  to  enable  those  to  be  affected 
thereby  to  advise  themselves  as  to  the  statute  before  being 
bound  by  its  provisions. 

36.    Limitations  as  to  Methods  of  Legislation. 

With  reference  to  the  forms  and  methods  of  enacting  statutes, 
there  are  special  provisions  in  many  of  the  state  constitutions, 
such  as,  for  instance,  that  no  special  laws  shall  be  passed,  ex- 
cept under  circumstances  rendering  a  general  law  inapplica- 
ble ;  no  statute  shall  embrace  more  than  one  subject,  which 
must  be  expressed  in  the  title ;  each  bill  before  it  becomes  a 
law  must  receive  the  approval  of  the  two  houses  of  the  legisla- 
ture and  of  the  governor ;  and  the  hke.  But  as  provisions  on 
these  subjects  are  not  uniform,  and  are  not  embodied  in  all 
state  constitutions,  it  is  impracticable  to  give  them  any  exten- 
sive consideration. 

The  prohibition  against  special  legislation  when  general  laws 
can  be  made  applicable  is  intended  to  prevent  the  granting  of 
special  privileges  or  the  forwarding  of  individual  interests. 
Where  there  is  such  a  prohibition,  the  legislature  cannot  pass 
special  statutes  for  the  incorporation  of  cities,  but  must  pro- 
vide for  such  incorporation  by  general  statutes  which  may  be 
acted  upon  wherever  applicable  ;  and  such  a  provision  pre- 
vents the  passage  of  statutes  applicable  to  only  a  particular 
city  and  not  available  to  other  cities  of  substantially  the  same 
class,  or  under  substantially  the  same  conditions.  The  prohi- 
bition of  special  legislation  also  prevents  the  granting  of  special 
charters  to  private  corporations,  and  makes  it  necessary  for  the 
legislature  to  provide  for  the  formation  and  regulation  of  cor- 
porations in  accordance  with  general  laws  on  the  subject. 
By  such  a  provision  the  granting  of  divorces  by  the  legislature 
in  special  cases  is  also  prohibited.  Indeed,  the  granting  of  a 
divorce  is  not  properly  a  legislative,  but  rather  a  judicial  func- 
tion ;  but  owing  to  the  fact  that  before  the  separation  of  the 
colonies  from  Great  Britain  Parliament  exercised  the  power  of 
granting  divorces,  such  power  has  been  recognized  in  some  of 
the  states  as  belonging  to  the  legislature.     (See  above,  §  26.) 


§  36]  Limitations  in  Procedure.  73 

The  provision  against  including  more  than  one  subject  in  a 
legislative  enactment  is  intended  to  prevent  the  tacking  to  a 
statute  of  provisions  relating  to  irrelevant  matters,  and  thus 
carrying  through  the  legislature  measures  which  would  not  be 
adopted  on  their  own  merits.  It  is  a  common  device,  in  the 
absence  of  such  a  prohibition,  for  some  members  of  a  legislative 
body  to  secure  the  incorporation  into  a  statute  of  a  provision 
relating  to  a  different  subject,  the  supporters  of  the  particular 
measure  refusing  to  vote  for  the  principal  measure  unless  such 
provision  is  incorporated,  and  thus  securing  the  adoption  of  a 
provision  which  has  not  really  the  support  of  a  majority  of  the 
members.  It  is  not  intended,  however,  by  the  prohibition 
against  including  more  than  one  subject-matter  to  prevent  the 
incorporation  in  the  same  statute  of  separate  provisions  ger- 
mane to  the  same  general  purpose  ;  and  if  there  is  substantial 
connection  between  the  different  parts  of  the  statute,  it  will  not 
be  held  invalid  as  in  violation  of  such  a  prohibition,  although 
very  broad  and  general  in  its  scope.  Thus  the  legislature  may 
in  one  statute  embody  all  the  provisions  necessary  to  constitute 
a  complete  code  of  criminal  law  and  procedure  or  a  complete 
code  governing  the  practice  in  the  courts  ;  or  it  may  by  a 
general  statute  provide  for  the  organization  and  government  of 
municipal  or  private  corporations,  or  otherwise  cover  a  whole 
branch  of  the  law.  The  requirement  that  a  statute  shall  not 
embrace  any  subject  not  embodied  in  or  covered  by  the  title 
of  the  act  has  a  substantially  similar  purpose.  The  title  of  a 
statute  is  intended  to  be  a  brief  statement  of  the  subject-mat- 
ter to  which  the  statute  relates ;  and  if,  by  general  terms,  the 
scope  of  the  statute  is  indicated  in  the  title,  that  is  sufficient 


CHAPTER  VI. 
EXECUTIVE  DEPARTMENTS. 

37.    References. 

Joseph  Story,  Constitution,  §§  1430-1449,  1477-1480;  James  Kent, 
Commentaries  on  Am..  Law,  ch.  xiii ;  J.  R.  Tucker,  Constitution,  ch.  xii ; 
J.  N.  Pomeroy,  Constitutional  Law,  126-139;  J.  I.  C.  Hare,  Constitutional 
Law,  ch.  xiv ;  James  Bryce,  Americatt  Commonwealth,  I,  ch.  v  ;  The 
Federalist,  No.  68. 

38.   Organization  of  Executive  Departments. 

In  apparent  analogy  to  the  theory  of  the  British  constitu- 
tion as  it  existed  at  the  time  of  the  organization  of  the  state 
and  federal  governments,  by  which  the  executive  functions  of 
government  were  supposed  to  be  discharged  by  the  king  and  his 
ministers  and  other  officers  appointed  by  him  or  under  his 
authority,  provision  is  made  in  our  constitutional  system  for  the 
choice  of  a  chief  executive  and  subordinate  executive  officers. 
As  a  matter  of  fact  the  practical  exercise  of  executive  power 
no  longer  rests  in  Great  Britain  with  the  king,  but  it  is  now  in 
the  cabinet  or  ministry  composed  of  officers  technically  ap- 
pointed by  the  king  but  in  fact  chosen  from  the  two  houses  of 
Parliament,  not  in  accordance  with  the  king's  own  judgment 
or  wishes,  but  in  accordance  with  the  will  of  the  majority  in 
Parliament,  that  is,  for  the  purpose  of  securing  the  support  of 
a  majority  for  the  measures  which  may  be  proposed  or  the 
action  which  may  be  taken  by  them  as  ministers. 

In  the  United  States  the  theory  of  an  independent  executive 
department  is  still  practically  as  well  as  theoretically  retained. 
In  the  states  the  chief  executive  and  also  the  principal  execu- 
tive officers  are  selected  by  popular  vote ;  under  the  provisions 
of  the  federal  constitution  the  president  and  vice-president  are 

74 


§  4o]  The  State  Executive.  75 

chosen  indirectly  by  popular  vote,  while  the  chief  executive 
officers,  composing  the  president's  cabinet,  are  appointed  by 
the  president,  with  the  approval  of  the  Senate  (Art.  II,  §  2, 
^2).  There  is,  however,  no  direct  provision  that  the  chief 
executive  officers,  who  are  provided  for  by  law  and  designated 
as  secretaries  of  different  departments,  shall  act  together  as  an 
advisory  cabinet;  but  this  seems  to  be  contemplated  in  the 
provision  that  the  president  "  may  require  the  opinion  in  writ- 
ing of  the  principal  officer  in  each  of  the  executive  departments 
upon  any  subject  relating  to  the  duties  of  their  respective  offi- 
ces" (Art.  II,  §  2,  1^  i).  At  any  rate,  it  has  become  the 
practice  for  the  president  to  present  matters  which  concern 
the  government  as  a  whole,  and  not  merely  the  administration 
of  any  particular  department,  to  the  cabinet  sitting  as  a  body; 
although  action,  when  finally  taken,  is  on  the  authority  of  the 
president,  the  opinion  of  the  cabinet  being  merely  advisory. 

39.  The  State  Executive. 

The  chief  executive  officer  of  a  state,  usually  called  the  gov- 
ernor, is  in  all  the  states  chosen  by  popular  election.  A  lieu- 
tenant-governor is  usually  selected  in  the  same  manner.  In 
some  of  the  states  the  result  of  the  election  is  determined  by 
the  legislature,  to  which  the  boards  of  canvassers  in  each  county 
send  the  returns  of  the  votes  as  to  those  offices  in  their  respec- 
tive counties.  In  other  states  special  canvassing  boards  count 
and  announce  the  vote.  In  most  states  a  plurality  of  votes 
elects. 

40.  Election  of  President. 

The  plan  provided  in  the  federal  constitution  for  the  choice 
of  the  chief  executive  is  complicated  and  in  some  ways  unsatis- 
factory. The  plan  prescribed  by  the  constitution  is  for  each 
state  to  appoint,  "  in  such  manner  as  the  legislature  thereof 
may  direct,  a  number  of  electors  equal  to  the  whole  number 
of  senators  and  representatives  to  which  the  state  may  be 
entitled  in  the  Congress  "  (Art.  II,  §  i,  1  2).  But  in  Amend- 
ment XII  the  details  have  been  changed,  and  it  is  pro- 
vided that  the  electors  chosen  in  each  state  shall   meet  in 


76  Executive  Departments.  [§  40 

their  respective  states  and  ballot  on  the  question  of  the 
election  of  a  president  and  a  vice-president;  that  a  certified 
return  of  the  ballots  cast  shall  be  transmitted  to  the  seat  of 
government,  directed  to  the  president  of  the  Senate ;  that  the 
president  of  the  Senate,  in  the  presence  of  the  Senate  and  the 
House  of  Representatives,  shall  open  the  certificates  "and 
the  votes  shall  then  be  counted,"  and  that  the  person  having 
the  greatest  number  of  votes  for  president  shall  be  the  presi- 
dent, if  he  has  received  the  votes  of  a  majority  of  the  whole 
number  of  electors  chosen.  If  no  person  has  received  such 
majority,  then,  from  the  persons  having  the  highest  numbers, 
not  exceeding  three,  on  the  list  of  those  voted  for  as  presi- 
dent, the  House  of  Representatives  shall  immediately  choose 
the  president  by  ballot,  voting,  however,  by  states,  the  repre- 
sentation from  each  state  having  one  vote,  and  to  consti- 
tute a  quorum  for  this  purpose,  two-thirds  of  the  states  must 
be  represented,  and  a  majority  of  the  states  shall  be  necessary 
to  a  choice.  It  is  further  provided  that  if  the  choice  of  presi- 
dent devolves  upon  the  House  of  Representatives,  and  no 
choice  is  made  before  the  fourth  day  of  March  following,  then 
the  vice-president  elect  shall  act  as  president.  The  vice-presi- 
dent is  chosen  in  substantially  the  same  way,  save  that  if  no 
one  person  has  received  the  votes  of  a  majority  of  the  presi- 
dential electors,  then  the  choice  shall  be  made  by  the  Senate, 
from  the  two  highest  numbers  on  the  list. 

Congress  is  authorized  to  determine  the  time  of  choosing 
the  presidential  electors  in  the  respective  states  and  the  day 
on  which  they  shall  give  their  votes,  which  day  shall  be  the 
same  throughout  the  United  States  (Art.  II,  §  i,  %  s)>  ^^^^^ 
by  statute  (1792)  the  Tuesday  next  after  the  first  Monday  in 
November  was  fixed  by  Congress  as  the  day  of  popular  vot- 
ing. Another  statute  (1887)  provides  that  the  electors  of  each 
state  shall  meet  and  give  their  votes  on  the  second  Monday  in 
January  next  following  their  appointment,  at  such  place  in  each 
state  as  the  legislature  thereof  shall  direct. 

The  practical  working  of  the  plan  is  this :  that  the  states 
provide  for  the  choice  of  presidential  electors  by  popular  vote, 
rarely  by  districts,  almost  invariably  by  general  ballot  for  the 


§  4o]  Election  of  President.  77 

whole  electoral  college  throughout  the  state.  As  the  choice 
of  a  president  is  a  party  matter,  this  method  results,  save  in 
very  exceptional  cases,  in  the  choice  of  all  electors  for  the 
state  nominated  on  the  ticket  of  the  party  which  secures  the 
greatest  number  of  votes ;  hence  all  the  electors  from  a  state 
will  cast  their  votes  for  the  person  designated  by  the  national 
convention  of  the  party  which  secures  the  largest  popular  vote 
in  that  state.  The  electoral  vote  of  a  state  is  occasionally 
divided,  however,  when  for  some  local  reason  one  or  more  of 
the  candidates  for  the  office  of  presidential  elector  nominated 
by  the  dominant  party  have  been  defeated,  although  their 
associates  on  the  same  ticket  have  been  elected. 

The  evident  intention  in  the  framing  of  the  constitutional 
provisions  was  to  secure  a  body  of  presidential  electors  who 
should  exercise  a  discretion  in  the  choice  of  a  suitable  person 
for  president ;  but  as  a  matter  of  fact  no  such  discretion  has 
been  exercised  since  1792.  There  might  be  contingencies, 
however,  under  which  the  electors  would  vote  for  a  different 
person  than  the  candidate  on  the  ticket  of  their  party,  either 
by  failing  to  carry  out  the  implied  obligation  to  express  the 
preference  of  the  voters,  or,  as  happened  in  1872,  if  the  party 
candidate  should  die  before  the  time  when  the  boards  of 
electors  are  required  to  cast  their  ballots.  But  even  if  no 
such  contingency  occurs,  the  result  will  not  necessarily  be  the 
same  as  though  the  voters  in  each  state  cast  their  ballots 
directly  for  president ;  and  it  has  several  times  happened  that 
the  candidate  for  president  receiving  a  majority  of  the  elec- 
toral votes  was  not  the  candidate  who  would  have  been  chosen 
had  the  election  been  by  national  popular  vote. 

In  the  election  of  1877,  when  Mr.  Hayes  as  the  candidate 
of  the  Republican  party  and  Mr.  Tilden  as  the  candidate  of 
the  Democratic  party  had  received  the  votes  of  the  electors 
chosen  by  the  respective  parties,  a  question  was  raised  as  to 
the  legaUty  of  the  returns  from  certain  of  the  states,  and  the 
result  depended  upon  whether  certain  returns  should  be  recog- 
nized as  lawful.  On  this  occasion  a  compromise  measure  was 
passed  by  the  two  houses  in  accordance  with  which  an  extra- 


yS  Executive  Departments.  [§  41 

constitutional  electoral  commission  was  created  to  determine 
what  returns  should  be  counted ;  and  as  a  result  Mr.  Hayes 
was  declared  the  president.  Provision  has  since  been  made 
by  statute  (1887)  for  another  method  of  counting  the  electoral 
vote.  Whatever  difficulties  may  arise  on  the  subject  must  be 
settled  by  the  two  houses  of  Congress,  in  whose  presence  the 
president  of  the  Senate  is  directed  to  count  the  returns.  No 
question  relating  to  the  result  of  the  election  can  be  raised  in 
the  courts. 

41.  Term  and  Qualifications  of  President ;  Vacancy  in 
Office. 

The  president  and  vice-president  hold  office  during  ^  the 
term  of  four  years,  and  it  is  required  that  the  president  be  a 
natural-born  citizen  who  shall  have  attained  the  age  of  thirty- 
five  years  and  been  fourteen  years  a  resident  within  the  United 
States  (Art.  II,  §  i,  1[  4). 

In  case  of  vacancy  in  the  office  of  president  on  account  of 
removal  from  office  or  of  death,  resignation,  or  inability  to  dis- 
charge its  powers  and  duties,  such  powers  and  duties  devolve 
on  the  vice-president,  and  Congress  is  authorized  to  provide 
by  law  for  the  case  of  removal,  death,  resignation,  or  inability 
of  both  the  president  and  vice-president  (Art.  II,  §  i,  ^  5). 
Congress  has  made  such  provision  by  a  statute  (1886)  declaring 
that  in  such  case  the  secretary  of  state,  the  secretary  of  the 
treasury,  the  secretary  of  war,  the  attorney-general,  the  post- 
master-general, the  secretary  of  the  navy,  and  the  secretary  of 
the  interior,  shall,  in  the  order  named,  act  as  president  (each 
only  in  the  event  of  the  removal,  death,  resignation,  or  inability 
or  ineligibility  of  those  preceding  him  in  the  list)  until  the  dis- 
ability of  the  president  or  vice-president  is  removed  or  a  presi- 
dent shall  be  elected,  and  that  when  the  powers  and  duties  of 
the  president  shall  devolve  upon  any  of  the  persons  named,  he 
shall  convene  Congress  in  extraordinary  session,  if  it  be  not 
then  in  session. 


CHAPTER  VII. 
JUDICIAL  DEPARTMENTS. 

42.    References. 

Joseph  Story,  Constitution,  §§  1 599- 1636;  J.  R.  Tucker,  Constitution, 
ch.  xiii :  James  Kent,  Commentaries  on  Am.  Law,  Lect.  xiv :  ^^he 
Federalist,  No.  78 ;  -Raines  Bryce,  American  Commonwealth,  I,  chs.  xxii, 
xlii ;  J.  W.  Burgess,  Political  Science  and  Constitutional  Law,  II,  322-325  \ 
A.  B,  Hart,  Actual  Government  (Amer.  Citizen  Series),  ch.  xvii. 

43.   Selection  of  Judges. 

The  powers  of  the  judicial  departments  of  the  state  and 
federal  governments  are  exercised  by  courts  provided  for  in 
their  respective  constitutions  or  created  by  the  legislative  de- 
partments for  the  purpose  of  exercising  such  judicial  powers. 
The  general  functions  of  courts  and  the  apportionment  of 
powers  among  them  will  be  considered  later.  In  describing 
the  organization  of  such  departments  for  present  purposes,  it 
is  sufficient  to  say  that  courts  are  presided  over  by  judges ; 
and  that  these  judges  are  selected  by  election  or  appointment, 
as  may  be  provided  in  the  state  or  federal  constitution,  re- 
spectively. In  England  the  judges  are  appointed  by  or  under 
the  authority  of  the  king,  and  the  term  of  office  is  unlimited. 
In  some  of  the  older  states  the  judges  are  appointed  by  the 
executive,  in  others  they  are  elected  by  the  state  legislatures. 
In  much  the  larger  number  of  states,  however,  judges,  like 
legislative  or  executive  officers,  are  chosen  by  a  popular  elec- 
tion for  fixed  terms.  But  the  desirability  of  securing  the 
complete  independence  of  the  judiciary  and  removing  the 
judges  from  all  party  influence  was  a  sufficient  argument  with 
the  framers  of  the  federal  constitution  to  induce  them  to  pro- 
vide that  the  judges  of  the  federal  courts  shall  hold  office  dur- 

79 


8o  Judicial  Departments.  [§  43 

ing  good  behavior  and  receive  a  compensation  which  shall  not 
be  diminished  during  their  continuance  in  office  (Art.  Ill, 
§1).  This  means  that  they  are  appointed  for  life  and  can  be 
removed  only  by  impeachment.  Their  appointment  is  by  the 
president,  by  and  with  the  advice  and  consent  of  the  Senate 
(Art.  II,  §  2,f2). 

Even  in  the  states  in  which  the  judges  are  elected  there  has 
been  a  tendency  to  secure  independence  of  party  influences 
by  providing  for  long  terms,  or  for  choice  at  an  election  dis- 
tinct from  that  at  which  other  state  and  federal  officers  are 
elected,  or  by  continuing  the  incumbents  in  office  by  repeated 
re-elections. 


Part  III. 

Legislation. 

CHAPTER  VIII. 
STATE   LEGISLATION. 

44.    References. 

Joseph  Story,  Commentaries  on  the  Constitution,  §§  531-544;  J.  W. 
Burgess,  Political  Science  and  Constitutional  Law,  II,  41-185;  James 
Bryce,  American  Commonwealth,  I,  ch.  xl ;  A.  B.  Hart,  Actual  Govern- 
ment  (Arner.  Citizen  Series),  ch.  vii. 

45.    Nature  of  Legislative  Power. 

Bearing  in  mind  the  difference  between  the  powers  of  a 
state  government  which  are  general  in  their  scope,  and  those 
of  the  federal  government,  which  has  only  the  enumerated 
powers  conferred  upon  it  by  the  federal  constitution  and  those 
which  are  implied  therefrom  (see  above,  §  17)  it  is  apparent 
that  the  general  powers  of  legislation  are  vested  in  the  legis- 
latures of  the  states,  while  Congress  has  legislative  authority 
only  as  to  limited  classes  of  subjects.  It  will  be  useful,  there- 
fore, to  consider  first  the  scope  of  state  legislation.  But  it  is 
not  easy  to  be  exhaustive  in  this  respect,  for  the  original  state 
constitutions  and  some  of  a  later  period  contain  very  few  speci- 
fications as  to  the  matters  about  which  laws  may  be  enacted. 

The  difficulties  which  bring  before  courts  questions  in  regard 
to  state  legislation  concern  limitations  on,  rather  than  the 
extent  of,  the  powers  of  the  state  governments.  The  general 
6  81 


82  State  Legislation.  [§  45 

object  of  legislation  is  to  provide  for  the  public  good  and  the 
health,  good  order,  education,  and  morals  of  the  people ;  and 
any  statutes  in  furtherance  of  these  purposes,  and  not  in  viola- 
tion of  limitations  upon  powers  of  the  state  government  or  its 
legislative  department,  will  in  general  be  valid.  In  determin- 
ing the  extent  of  legislative  power  we  may  properly  have  in 
mind  the  history  of  constitutional  government  in  Great  Britain 
and  the  United  States,  and  especially  the  fact  that  in  Great 
Britain  Parliament  is  the  legislative  power,  and  we  may  safely 
say  that  those  subjects  with  reference  to  which  in  the  course 
of  English  history  Parliament  has  been  in  the  habit  of  dealing 
by  way  of  legislation  are  within  the  scope  of  legislative  power 
under  our  form  of  government,  unless  some  constitutional 
restriction  has  been  imposed.  Out  of  this  mass  of  potential 
powers,  seldom  enumerated  in  state  constitutions,  three  classes 
of  subjects  for  legislative  power  may  be  distinguished. 

( 1 )  All  legislation  relating  to  the  carrying  on  of  the  opera- 
tions of  government,  not  only  legislative,  but  also  executive 
and  judicial ;  for  the  general  laws  in  accordance  with  which 
the  functions  of  the  judicial  and  executive  departments  are 
to  be  discharged  must  be  provided  by  the  legislative  power. 
Thus  legislation  will  provide  for  the  election  and  appointment 
of  judicial  officers  and  apportion  their  duties  to  them,  so  far 
as  their  selection  and  duties  are  not  directly  controlled  by  the 
constitution.  As  to  this  kind  of  legislation,  very  little  need 
be  said  by  way  of  explanation  or  illustration,  for  the  whole 
matter  is  left  largely  to  the  discretion  of  the  legislatures. 

(2)  Legislation  relating  to  the  providing  and  expenditure 
of  the  revenues  essential  to  the  carrying  on  of  the  operations 
of  the  government ;  and  this  may  be  described  in  a  general 
way  as  an  exercise  of  the  taxing  power. 

(3)  Legislation  relating  to  the  control  of  the  personal  and 
property  rights  of  those  who  are  subject  to  the  government, 
with  a  view  to  securing  and  promoting  their  general  welfare ; 
for  this  is  the  main  object  of  government.  Such  legislation  is 
an  exercise  of  the  so-called  police  power,  which  will  be  more 
fully  explained  in  the  next  chapter. 


§  46]  Limitations.  83 

46.    General  Considerations  as  to  Limitations  on  Legislation. 

Before  proceeding  with  a  further  discussion  of  state  legisla- 
tion, it  will  be  convenient  to  explain  the  nature  of  the  limitations 
on  that  power ;  for  it  may  be  stated  as  a  general  proposition 
that  the  power  of  state  legislation  in  the  making  of  laws  is 
controlled  only  by  its  own  discretion,  unless  it  oversteps 
the  limitations  on  its  power  imposed  by  the  state  or  federal 
constitutions. 

(i)  The  first  limitation  is  one  already  suggested,  that  the 
power  which  the  legislature  attempts  to  exercise  must  be  legis- 
lative in  its  nature,  for  it  is  only  legislative  power  that  the 
state  constitution  confers  upon  the  legislative  department,  and 
it  cannot  interfere  with  the  other  departments  in  the  discharge 
of  their  functions.  Such  limitations,  so  far  as  they  restrain  the 
legislative  department  with  reference  to  the  executive  and 
judicial  departments,  have  already  been  sufficiently  considered. 
(See  ch.  iv.) 

(2)  It  must  also  be  noticed  that  the  legislative  department 
in  the  enactment  of  laws  must  comply  with  the  forms  of  pro- 
cedure pointed  out  by  the  constitution,  for  only  as  authorized 
by  the  constitution  can  a  legislature  exercise  its  functions. 
Something  has  already  been  said  in  preceding  chapters  as  to 
the  constitution  and  organization  of  the  legislative  departments 
and  the  methods  of  exercising  their  powers  so  far  as  they  are 
specified  in  the  state  and  federal  constitutions. 

(3)  The  state  legislature  is  also  limited  in  its  powers  by 
the  fact  that  it  is  subordinate  to  the  federal  government  as 
to  all  matters  which  by  the  federal  constitution  are  placed 
within  the  control  of  that  government  (see  ch.  iii),  and  there- 
fore state  legislation  as  to  subjects  over  which  the  federal 
government  has  exclusive  supervision  will  be  invalid  ;  and  even 
as  to  subjects  which  are  within  the  scope  of  federal  regu- 
lation, although  the  powers  of  the  federal  government  are 
not  exclusive,  state  legislation  must  yield  to  such  federal  regu- 
lations as  have  properly  been  adopted  with  reference  to  such 
subjects. 


84  State  Legislation.  [§  46 

(4)  The  state  legislature  is  restricted  by  the  direct  limita- 
tions upon  its  power  found  in  either  the  state  or  federal  con- 
stitution. The  more  general  and  important  of  these  are  that 
no  person  shall  be  deprived  of  his  life,  liberty,  or  property 
without  due  process  of  law ;  that  no  person  shall  be  denied 
the  equal  protection  of  the  laws ;  that  the  obligation  of  con- 
tracts shall  not  be  impaired  ;  that  private  property  shall  not 
be  taken  for  public  use  without  compensation ;  and  that  no 
bills  of  attainder  or  ex  post  facto  laws  shall  be  enacted.  These 
express  limitations  will  be  considered  in  subsequent  chapters. 
The  discussion  of  these  limitations  constitutes  the  principal 
part  of  constitutional  law  as  administered  by  the  courts. 

(5)  A  legislature  cannot  bind  or  restrict  the  powers  of  sub- 
sequent legislatures,  except  in  so  far  as  it  may  and  does  create 
contractual  obligations  as  against  the  State.  (See  below, 
§  268.) 


CHAPTER   IX. 
THE   POLICE   POWER. 

47.    References. 

T.  M.  Cooley,  CojistitutioJial  Limitations^  ch.  xvi ;  T.  M.  Cooley,  Consti- 
tutional Law,  ch.  xiii,  §  4;  H.  C.  Black,  Constitutional  Law,  ch.  xiv; 
J.  R.  Tucker,  Constitution,  ch.  xiv;  E.  Freund,  The  Police  Power ;  C.  G. 
Tiedeman,  Li?nitations  of  Police  Power;  W.  P.  Prentice,  Police  Powers ; 
Munn  V.  Illinois  (1876,94  U.  S.  113;  Thayer's  Cases,  743;  McClain's 
Cases,  946);  Mugler  v.  Kansas  (1887,  123  U.  S.  623;  Thayer's  Cases, 
782;  McClain's  Cases,  938) ;  Wynehamer  v.  People  (1856,  13  N.  Y.  378; 
Thayer's  Cases,  715) ;  Barbierv.  Connelly  (1885,  ^^3  U.  S.  27  ;  McClain's 
Cases,  925;  Thayer's  Cases,  623);  Holden  v.  Hardie  (1898,  169  U.  S. 
366;  McClain's  Cases,  929);  Dent  v.  West  Virginia  (1889,  129  U.  S. 
114;  McClain's  Cases,  934);  Slaughter- House  Cases  (1S72,  16  Wallace, 
36;  McClain's  Cases,  18;  Thayer's  Cases,  516);  Civil  Rights  Cases 
(1883,  109  U.  S.  3  ;  McClain's  Cases,  37  ;  Thayer's  Cases,  554);  Lottery 
Case  (1903,  188  U.  S.  321  ;  McClain's  Cases,  2d  ed.  107 1). 

48.    General  Scope  of  Police  Power. 

The  term  "  police  power  "  is  used  to  designate  that  most 
important  function  of  securing  the  largest  practicable  measure 
of  wellbeing  to  those  who  live  together  in  the  social  organiza- 
tion. This  is  indeed  the  ultimate  object  of  government.  No 
very  specific  or  complete  definition  or  description  of  this 
power  can  be  framed,  nor  has  it  been  often  attempted.  Per- 
haps an  enumeration  of  some  of  the  most  important  subjects 
which  indisputably  fall  within  it  will  give  a  better  idea  of  its 
scope  and  nature  than  any  technical  definition. 

(i)  The  legislature  may  provide  for  the  acquisition,  use, 
and  control  of  property  for  the  public  benefit,  such  as  for 
public  buildings,  charitable  and  educational  purposes,  high- 
ways, parks,  and  public  grounds.  Such  property  is  acquired 
by  the  exercise  of  the  power  of  eminent  domain ;  but  legisla- 
tion in  reference  to  the  exercise  of  that  power,  and  in  refer- 

85 


86  Police  Power.  [§  48 

ence  to  control  and  enjoyment  by  the  public,  is  within  the 
scope  of  the  police  power.  There  are  also  public  rights  in 
navigable  streams  and  inland  lakes  and  the  seas,  bays,  and 
other  waters,  so  far  as  they  are  within  the  jurisdiction  of  the 
state,  which  the  state  may  properly  regulate.  It  may  also 
make  regulations  for  the  preservation  of  fish  and  game  on  the 
theory  that  they  are  a  species  of  public  property  in  which  the 
people  of  the  state  have  a  common  interest. 

(2)  Legislation  as  to  the  public  school  system  and  institu- 
tions of  higher  education,  at  least  so  far  as  they  are  provided 
at  the  public  expense,  is  within  the  scope  of  the  police 
power. 

(3)  Some  kinds  of  property  and  some  calHngs  are  so  far 
of  a  pubHc  nature  that  the  state  may  regulate  them  to  a 
greater  extent  than  it  may  regulate  property  and  callings  not 
public  in  their  nature ;  and  such  regulations  are  made  in  the 
exercise  of  the  police  power.  For  instance,  the  legislature 
may  regulate  the  rates  to  be  charged  by  railroads  and  express 
companies  and  by  those  operating  public  elevators  or  ware- 
houses, and  may  control  the  business  of  hotel  keepers  and 
others  furnishing  places  of  public  entertainment.  The  exercise 
of  the  police  power  in  the  regulation  of  rates  of  charge  for 
public  services  is  in  recent  years  very  largely  extended.  Cor- 
porations such  as  gas  and  electric  light,  water,  street  car  and 
other  companies  to  which  are  given  the  privilege  of  using  the 
streets  of  a  city  for  the  advantage  of  the  public  may  be  con- 
trolled as  to  their  rates  and  charges,  even  though  no  such 
reservation  has  been  expressly  made  by  constitutional  or 
statutory  provision.  The  charters  of  such  companies,  although 
they  are  regarded  as  contracts,  do  not  exempt  them  from  such 
regulation.     (See  below,  §  269.) 

(4)  In  the  furtherance  of  the  public  welfare  the  legislature 
may  control  the  use  of  property  which  is  strictly  private  in  its 
nature,  and  the  business  and  conduct  of  individuals,  on  the 
general  principle  that  each  individual  may  be  restricted  in  his 
own  actions  and  in  his  own  property  so  as  not  to  interfere 
with  the  enjoyment  of  like  privileges  of  others.     Thus   the 


§49]  Analysis.  87 

owner  of  property  may  be  prevented  from  using  it  for  pur- 
poses obnoxious  to  his  neighbors,  that  is,  he  may  be  prevented 
from  maintaining  a  nuisance ;  the  heights  of  buildings  in 
cities  may  be  restricted;  fire  limits  in  cities  may  be  fixed, 
within  which  buildings  of  wood  or  other  inflammable  material 
may  not  be  constructed ;  the  storage  and  sale  of  explosives  or 
extremely  inflammable  materials  may  be  regulated ;  to  some 
extent  limitations  may  be  placed  on  hours  of  labor,  especially 
for  the  preservation  of  the  health  of  those  engaged,  or  for  the 
protection  of  the  weak,  as  women  and  children  (and  see  below, 
§  261)  ;  the  sale  of  intoxicating  liquors  and  drugs  may  be  regu- 
lated and  controlled  ;  a  large  measure  of  power  may  be  exercised 
with  reference  to  the  protection  of  public  health ;  immorality 
may  be  suppressed ;  business,  such  as  the  carrying  on  of  lot- 
teries, which  is  deemed  contrary  to  public  policy,  may  be  for- 
bidden ;  the  rates  of  interest  on  loans  of  money  may  be  limited. 
(5)  Finally,  without  continuing  further  the  enumeration, 
which  might  be  extended  to  cover  a  long  Hst  of  subjects,  the 
destruction  of  property  by  reason  of  some  controlling  public 
necessity  may  be  authorized. 

49.    Police  Power  Primarily  in  States. 

The  police  power  lies  within  that  great  body  of  powers 
reserved  to  the  states,  and  not  conferred  upon  the  federal 
government.  In  the  very  nature  of  things  this  ought  to  be  so. 
If  state  governments  were  to  be  continued  for  any  purpose  as 
independent  repositories  of  the  powers  which  the  people  con- 
fer upon  governments,  then  it  was  natural  that  in  the  forma- 
tion of  our  constitutional  system  the  protection  of  property 
and  personal  rights,  the  preservation  of  the  public  health  and 
the  promotion  of  the  general  welfare  would  be  left  to  the  state 
governments.  Thus  it  was  held  in  T/ie  Civil  Rights  Cases  that 
even  under  the  Fourteenth  Amendment  of  the  federal  consti- 
tution prohibiting  the  states  from  making  or  enforcing  any  law 
«'  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States,"  and  authorizing  Congress  to  enforce 
this  amendment  by  appropriate    legislation,   Congress   could 


88  Police  Power.  [§  49 

not  enact  a  civil  rights  act,  the  object  of  which  was  to  protect 
colored  persons  in  the  equal  enjoyment  with  white  persons  of 
the  privileges  of  hotels,  passenger  trains,  theatres,  barber 
shops,  and  other  places  of  public  enjoyment,  entertainment,  or 
amusement,  on  the  ground  that  federal  legislation  "cannot 
properly  cover  the  whole  domain  of  rights  appertaining  to 
life,  liberty,  and  property,  defining  them  and  providing  for 
their  vindication.  That  would  be  to  establish  a  code  of 
municipal  law  regulative  of  all  privileges  between  man  and 
man  in  society.  It  would  be  to  make  Congress  take  the  place 
of  state  legislatures  and  to  supersede  them." 

States  in  exercising  this  police  power  must  keep  within  the 
limitations  of  federal  and  state  constitutions,  but  their  authority 
to  exercise  it  is  not  conferred  by  the  federal  constitution,  nor 
taken  away  by  it.  Such  statutory  provisions  as  were  embodied 
in  the  civil  rights  acts  may  well  be  enacted  by  the  states  in 
the  exercise  of  the  police  power ;  but  they  are  not  within  the 
exercise  of  any  of  the  enumerated  powers  given  to  Congress 
by  the  federal  constitution.  It  may  be  true  that  the  impelling 
motive  for  the  adoption  of  the  Fourteenth  Amendment  was 
the  protection  of  the  rights  of  the  colored  people  recently 
emancipated  from  slavery ;  but  the  protection  guaranteed  was 
against  discrimination  by  the  states  themselves  and  not  in- 
fringement of  their  rights  as  citizens  by  their  fellow-citizens ; 
and  it  is  well  settled  now  that  whatever  may  have  been  the 
motive  for  the  adoption  of  that  amendment,  its  provisions  are 
general  in  their  character  and  extend  to  all  persons  alike. 
(See,  §§  21,  259.) 

Some  classes  of  legislation  enacted  by  Congress  may  be 
prompted  by  a  desire  to  promote  the  general  welfare  of  the 
people,  as,  for  instance,  the  general  protective  tariff  system 
and  the  legislation  in  reference  to  internal  improvements ; 
but  such  legislation  rests  for  its  constitutionality  on  powers 
implied  from  those  conferred  upon  Congress  by  the  federal 
constitution.  The  protective  tariff  laws  are  measures  properly 
enacted  under  the  express  power  to  raise  revenue  and  to  regu- 
late foreign  commerce;    and  appropriations  for  internal  im- 


§  49]  Primarily  in  States.  89 

provements  are  justified  as  a  legitimate  exercise  of  powers 
given  to  Congress  with  reference  to  commerce,  post  offices  and 
post  roads,  and  like  subjects.  Thus  obscene  publications,  lot- 
tery advertisements,  and  like  objectionable  matter  are  excluded 
from  the  mails  (see  below,  §  1 04 ) ;  and  under  the  power  to  reg- 
ulate interstate  and  foreign  commerce  the  transportation  of 
lottery  tickets  as  articles  of  such  commerce  is  prohibited.  {^Lot- 
tery Case.)  But  the  federal  constitution  nowhere  gives  to 
Congress  a  general  power  to  provide  for  the  public  welfare. 
The  phrase  *'for  the  common  defence  and  general  welfare  of 
the  United  States  "  appears  in  the  clause  relating  to  the  power 
of  Congress  to  lay  and  collect  taxes,  duties,  and  imposts  (Art.  I, 
§  8,  ^  i),  and  is  merely  a  specification  of  purposes  —  possibly 
a  limitation  on  the  purposes  —  for  which  money  may  thus  be 
raised,  not  a  grant  of  legislative  power  in  reference  to  the  pro- 
tection of  private  rights.  The  citizens  of  a  state,  ahhough  they 
are  also  citizens  of  the  United  States,  are  to  look  to  the  laws 
and  authority  of  their  own  state  to  determine  and  protect  their 
rights  with  reference  to  each  other  and  each  other's  property, 
and  the  federal  authority  interferes  only  so  far  as  the  federal 
constitution  itself  may  authorize. 


CHAPTER  X. 
PUNISHMENT   OF  CRIME. 

50.  References. 

In  General  :  E.  McClain,  Criminal  Law,  ch.  iii ;  J.  P.  Bishop,  Criminal 
Law,  chs.  ix,  xii;  J.  I.  C.  Hare,  Constitutional  Law,  Lects.  Hi,  liii;  J.  N. 
Pomeroy,  Constitutional  Law,  §§  415-440. 

Treason  :  J.  Story,  Constitution,  §§  1295-1301, 1796-1803;  E.  McClain, 
Criminal  Law,  ch.  Ixxv ;  J.  P.  Bishop,  Criminal  Law,  I,  §§  611-613,  II, 
§§  1 202-1 255;  J.  R.  Tucker,  Constitution,  §§303-305;  F.  Lieber,  Civil 
Liberty  and  Self-Governmetit,  ch.  viii ;  A.  B.  Hart,  Actual  Government 
(Amer.  Citizen  Series),  §  251  ;  T.  M.  Cooley,  Constitutional  Law,  ch.  iv, 
§  14,  ch.  XV,  §  2;  H.  C.  Black,  Constitutional  Law,  §§  265-267;  United 
States  V.  Greathouse  (U.  S.  Circuit  Court,  1863,  4  Sawyer,  457  ;  McClain's 
Cases,  541). 

Counterfeiting:  E.  McClain,  Criminal  Law,  §§  774-776;  J.  P. 
Bishop,  Criminal  Law,  I,  §  988,  II,  §§  274-300;  T.  M.  Cooley,  Constitu- 
tional Law,  ch.  iv,  §  8;  H.  C.  Black,  Constitutional  Law,  212;  United 
States  V.  Marigold  (1849,  9  Howard,  560;  18  Curtis'  Decisions,  261; 
McClain's  Cases,  474). 

Crimes  on  High  Seas:  J.  Story,  Constitution,  §§  1157-1167;  E. 
McClain,  Criminal  Lciv,  ch.  Ixxvi;  J.  P.  Bishop,  Criminal  Law,  II, 
§§  1057-1063;  T.  M.  Cooley,  Constitutional  Law,  ch.  iv,  §  ii  ;  H.  C. 
Black,  Constitutional  Law,  218  ;  United  States  v.  Smith  (1820,  5  Wheaton, 
153;  4  Curtis'  Decisions,  597;  McClain's  Cases,  501);  United  States  \ . 
Rodgers  (1893,  150  U.  S.  249;  McClain's  Cases,  504). 

Crimes  within  the  Territories:  Reynolds  v.  United  States  (1878, 
98  U.  S.  145). 

Implied  Power  of  Federal  Government:  E.  McClain,  Criminal 
Law,  ch.  Ixvii ;  Logan  v.  United  States  (1892,  144  U.  S.  263;  McClain's 
Cases,  557;  Thayer's  Cases,  343);  Chinese  Exclusion  Case  (1889,  ^30 
U.  S.  581 ;    McClain's  Cases,  562). 

Ex  Post  Facto  Laws:  J.  Story,  Constitution,  %%  1345,  1373;  T.  M. 
Cooley,  Constitutional  Limitations,  **  264-273  ;  E.  McClain,  Criminal 
Law,  §§  78,  79;  J.  N.  Pomeroy,  Constitutional  Law,  §§  512,  535;  J.  R. 
Tucker,  Constitution,  §§  320,  321 ;  T.  M.  Cooley,  Cojistitutional  Law, 
ch.  XV,  §  I ;  H.  C.  Black,  Constitutional  Law,  §§  262,  263;  Calder  v.  Bull 
(1798,  3  Dallas,  386;  Thayer's  Cases,  1435;  McClain's  Cases,  980); 
Cummings  v.  Missouri  (1866,  4  Wallace,  277  ;  Thayer's  Cases,  1436) ; 
ICring  \.  Missouri  (i^S2,  107  U.  S.  221 ;  Thayer's  Cases,  1458;  McClain's 
Cases,  983). 

90 


§  52]  State  Power  as  to  Crimes.  91 

51.    state  Power  as  to  Crimes  in  General. 

The  authority  to  declare  what  acts  shall  constitute  crimes, 
and  to  provide  for  the  trial  and  punishment  thereof,  is  a 
branch  of  the  general  police  power  primarily  belonging  to  the 
states.  (See  above,  §  49.)  No  matter  how  serious  the  offence 
may  be,  if  it  is  only  an  offence  against  the  general  security  of 
person  or  property  which  the  law  seeks  to  afford,  or  against 
the  general  public  peace  and  welfare,  it  is  within  the  jurisdic- 
tion of  the  state  ;  and  the  proceedings  and  punishment  with 
reference  thereto  will  be  controlled  by  the  laws  of  the  state, 
subject  only  to  the  specific  limitations  on  state  power  found  in 
the  federal  constitution,  such  as  that  no  state  shall  pass  any 
bill  of  attainder  or  ex  post  facto  law  (Art.  I,  §  10;  see  below, 
§  59),  nor  deprive  any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws  (Amend.  XIV). 
Any  state  legislation  as  to  crime  is,  of  course,  subject  to  the 
limitations  of  the  state  constitution,  among  which  are  usually 
found  provisions  as  to  ex  post  facto  laws,  due  process  of 
law,  trial  for  the  graver  crimes  only  on  indictment,  the  right  of 
trial  by  jury,  and  other  like  guaranties.  (See  ch.  xlii.)  It  is 
sufficient  for  the  present  to  say  that  the  general  criminal  juris- 
diction is  with  the  state  government,  and  only  those  acts  affect- 
ing the  safety  of  the  federal  government  or  interfering  with  its 
exercise  of  the  powers  granted  to  it,  can  be  made  crimes  under 
federal  law. 

52.   Federal  Jurisdiction  as  to  Crimes. 

Congress  has  authority  to  provide  for  the  punishment  of 
four  classes  of  crimes:  (i)  those  specified  in  the  federal 
constitution  or  which  Congress  is  therein  given  express  power 
to  punish;  (2)  those  committed  within  territory  which  is 
permanently  subject  to  the  exclusive  jurisdiction  of  the  United 
States,  such  as  the  District  of  Columbia,  and  forts,  arsenals, 
navy  yards,  and  public  buildings,  the  sites  of  which  have  been 
ceded  for  public  purposes  by  the  state  to  the  federal  govern- 


92  Punishment  of  Crime.  [§  53 

ment;  (3)  those  committed  within  territory  subject  to  the 
jurisdiction  of  the  United  States,  but  not  included  within 
the  Umits  of  states  admitted  to  the  Union ;  (4)  offences  the 
punishment  of  which  is  provided  for  by  Congress  under  im- 
plied power  to  carry  out  the  express  provisions  of  the  consti- 
tution. Bearing  in  mind  that  the  federal  government  is  a 
government  of  delegated  and  not  of  general  powers  (see  above, 
§  17),  it  is  evident  that  any  criminal  legislation  of  Congress 
must  be  sustained  under  some  one  of  these  four  heads ;  and 
that  outside  of  these  classes  of  cases.  Congress  has  no  author- 
ity to  provide  for  the  punishment  of  acts  as  crimes  against  the 
laws  of  the  United  States ;  and,  of  course,  it  has  no  author- 
ity to  provide  for  the  punishment  of  crimes  against  the  laws 
of  the  states,  for  that  is  eicclusively  within  the  scope  of  state 
power. 

53.    The  Crime  of  Treason. 

Congress  is  expressly  given  power  to  declare  the  punishment 
of  treason  against  the  United  States  (Art.  Ill,  §  3),  and  in  the 
same  section  of  the  constitution  the  crime  of  treason  against 
the  United  States  is  expressly  defined  by  the  declaration  that 
it  "  shall  consist  only  in  levying  war  against  them  [the  United 
States],  or  in  adhering  to  their  enemies  giving  them  aid  and 
comfort."  It  is  not  usual  expressly  to  define  specific  crimes 
by  constitutional  provisions,  but  historically  there  is  a  good 
reason  for  giving  in  state  and  in  federal  constitutions  an  explicit 
definition  of  this  crime,  so  that  the  legislative  power  cannot, 
by  statute,  define  treason  so  as  to  include  any  other  acts 
than  those  enumerated.  By  the  old  English  law,  the  crirhe 
of  treason  was  divided  into  (i)  petit  treason,  a  crime  against 
a  superior,  and  (2)  high  treason  directed  against  the  sovereign 
or  the  government,  and  it  is  the  latter  offence  which  is  referred 
to  when  the  term  "  treason  "  is  used  in  the  constitution  or 
statutes  of  the  United  States  or  the  states. 

By  the  early  law  of  England,  many  acts  were  deemed  high 
treason  which  were  only  constructively  or  inferentially  offences 
against  the  sovereign  or  government,  and  the  courts,  by  arbi- 
trary construction,  punished  persons  for  treason  who  had  not 


§  53]  Treason.  93 

attempted  any  act  directed  against  the  sovereign  or  calculated 
to  overthrow  the  government.  Criticism  of  the  sovereign  or  the 
government  tending  to  lessen  the  public  respect  for  either 
might  be  thus  punished ;  and  prosecutions  for  treason  were 
resorted  to  for  the  purpose  of  intimidating  or  overthrowing 
those  who  were  hostile  to  the  ruler,  although  such  hostility  was 
not  manifested  by  any  act  of  violence.  As  early  as  the  year 
1350,  English  statutes  were  passed  to  remedy  this  abuse  by 
specifically  defining  what  should  constitute  high  treason,  and 
such  statutory  provisions  have  been  in  force  in  England  to  the 
present  time.  It  is  natural,  therefore,  that  these  provisions 
intended  as  a  guaranty  of  the  security  of  the  subjects  of 
England  against  the  exercise  of  tyrannical  power  on  the  part  of 
the  government  through  the  courts,  should  be  embodied  in 
substance  in  the  state  and  federal  constitutions ;  and  the 
definition  incorporated  into  the  federal  constitution  is  a  por- 
tion of  the  definition  found  in  the  early  English  statutes. 
Under  such  constitutional  provisions  neither  Congress  nor 
a  state  legislature  can  make  a  definition  for  the  crime  of 
treason  so  as  to  include  any  acts  not  included  in  the  terms 
of  the  federal  or  state  constitution. 

The  levying  of  war,  under  the  definition  of  treason  against 
the  United  States,  implies  an  assembling  of  persons  with  force 
and  arms  to  overthrow  the  government  or  resist  the  laws.  All 
who  aid  in  the  furtherance  of  the  common  object  of  levying 
war  in  however  minute  a  degree  or  however  remote  they  may  be 
from  the  scene  of  action  are  guilty  of  treason.  The  enemies  of 
the  United  States,  within  the  language  of  the  definition  relating 
to  lending  aid  and  comfort  to  such  enemies,  must  be  those  who 
are  engaged  in  carrying  on  hostilities  against  the  government. 
A  mere  conspiracy  or  intent  to  overthrow  the  government  or 
to  interfere  with  its  operations,  or  an  interference  with  the 
officers  or  agents  of  the  government  in  the  discharge  of  their 
duties,  but  not  in  pursuance  of  any  general  plan  to  resist  the 
enforcement  of  the  laws,  will  not  constitute  treason,  although 
such  an  act  may  be  punishable  as  constituting  a  crime  of  some 
other  description. 


94  Punishment  of  Crime.  [§  54 

During  the  war  of  the  rebellion,  it  was  held  that  the  con- 
federate government  was  for  the  time  being  a  government 
waging  war  against  the  United  States  in  such  sense  that  par- 
ticipation in  such  war  in  hostility  to  the  United  States,  or  the 
act  of  adhering  to  such  hostile  government,  rendering  aid  and 
comfort  to  it  or  its  forces  in  the  war,  constituted  treason  against 
the  United  States  {United States  v.  Greathouse).  It  is  to  be 
noticed,  however,  that  acts  of  hostility  on  the  part  of  the  subject 
of  a  foreign  government  owing  no  allegiance  to  the  United 
States  by  reason  of  citizenship  or  permanent  or  temporary  resi- 
dence within  its  limits  cannot  constitute  treason.  Such  persons 
would  not  be  subject  to  the  laws  of  the  United  States.  The 
citizens  of  the  confederate  states  who  engaged  in  rebellion 
against  the  federal  government  were  guilty  of  treason,  because 
while  citizens  and  subjects  of  the  United  States  they  levied 
war  against  the  United  States. 

Although  the  various  states  of  the  Union  are  not  in  every 
sense  sovereign  powers,  nevertheless  it  seems  to  be  conceded 
that  treason  may  be  committed  as  against  a  state  and  punished 
by  the  state  as  a  crime.  As  a  matter  of  fact,  during  the  entire 
existence  of  the  United  States  as  a  nation  there  have  been  very 
few  prosecutions  for  treason  either  against  the  federal  govern- 
ment or  against  a  state. 

54.    The  Crime  of  Counterfeiting. 

Congress  may  provide  "  for  the  punishment  of  counterfeiting 
the  securities  and  current  coin  of  the  United  States  "  (Const. 
Art.  I,  §  8,  ^  6).  Such  an  act  is  not  only  injurious  to  the 
public  in  impairing  the  general  security  of  the  currency  and 
to  the  individuals  who  are  actually  defrauded,  but  it  also 
affects  directly  the  government  issuing  and  authorizing  the  cir- 
culation of  the  currency,  counterfeits  of  which  are  made  or  put 
into  circulation;  and  it  was  therefore  regarded  as  important 
that  the  power  to  punish  such  a  crime  should  be  given  to  the 
federal  government  {United  States  v.  Marigold).  So  far  as 
the  act  of  counterfeiting  affects  the  general  public  welfare  or 
may  result  in  defrauding   individuals,  its  punishment  is  also 


§  55]         Counterfeiting,  Piracies,  etc.  95 

within  the  scope  of  state  power,  so  that  the  same  act  of  counter- 
feiting or  of  circulating  counterfeit  money,  knowing  it  to  be 
counterfeit,  may  constitute  an  offence  under  the  state  law  as 
well  as  under  the  federal  law ;  and  punishment  under  the  one 
will  not  preclude  a  second  punishment  under  the  other.  Con- 
gress has  also  provided  (1877)  for  the  punishment  of  those 
who  counterfeit  foreign  coin  or  put  such  counterfeit  coin  into 
circulation ;  this,  however,  is  not  under  the  express  constitutional 
power  to  punish  counterfeiting,  but  rather  under  the  power  to 
coin  money  and  the  corresponding  and  necessary  implied 
power  to  protect  and  to  preserve  the  soundness  and  the  security 
of  the  currency  of  the  country.  Likewise  the  counterfeiting  of 
national  bank  notes  may  be  punished  by  the  United  States  as 
incident  to  the  implied  power  to  authorize  the  issuance  of  such 
notes. 

55.    Piracies  ;  Crimes  on  the  High  Seas  ;  Offences  against  the 
Law  of  Nations. 

The  specific  power  given  to  Congress  "  To  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas,  and  offences 
against  the  law  of  nations  "  (Const.  Art.  I,  §  8,  ^  10)  brings 
within  the  scope  of  federal  legislation  acts  directly  affecting 
the  relations  of  this  and  foreign  governments.  The  high  seas 
furnish  the  channels  of  intercourse  with  foreign  nations,  and 
although  they  are  outside  of  the  jurisdiction  of  any  of  the  states 
they  are  still  within  the  jurisdiction  of  the  United  States  to  this 
extent,  that  vessels  registered  under  the  laws  of  the  United 
States,  while  on  the  seas,  are  regarded  as  parts  of  the  territory 
of  the  United  States;  and  criminal  acts  committed  on  such 
vessels  are  deemed  to  have  been  committed  within  the  juris- 
diction of  the  United  States.  A  robbery  or  forcible  depre- 
dation on  the  high  seas  without  lawful  authority  constitutes 
piracy  (  United  States  v.  Smith) ,  and  the  offender  is  subject  to 
punishment,  if  brought  into  the  United  States,  as  for  a  crime 
against  the  United  States,  although  he  may  not  have  been  at 
the  time  of  the  commission  of  the  crime  a  subject  of  the 
United  States.    Pirates  are  treated  as  the  enemies  of  all  nations, 


96  Punishment  of  Crime.  [§  57 

and  they  are  subject  to  punishment  in  any  jurisdiction  into 
which  they  may  be  brought. 

Felonies,  that  is,  crimes  of  a  grave  nature,  committed  by  per- 
sons who  are  on  vessels  authorized  to  sail  under  the  United 
States  flag,  are  punishable  by  the  laws  of  the  United  States,  on 
the  theory  that  the  crime  is  committed  within  its  jurisdiction. 
Under  their  admiralty  and  maritime  jurisdiction,  the  courts  of 
the  United  States  may  punish  other  crimes  as  defined  by  Con- 
gress, committed  on  United  States  vessels ;  so  that  it  may  be 
said  in  general  that  it  is  within  the  power  of  Congress  to  pro- 
vide for  the  punishment  of  crimes  committed  on  the  high  seas 
or  on  the  navigable  waters  of  the  United  States  without  regard 
to  whether  they  are  felonies  or  crimes  of  lesser  degree  {Uriited 
States  v.  Rodgers). 

56.    Crimes  in  Places  within  Exclusive  Federal  Jurisdiction. 

As  Congress  is  given  exclusive  power  of  legislation  over  the 
District  of  Columbia  and  ''  places  purchased  by  the  consent  of 
the  legislature  of  the  state  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings  (Const.  Art.  I,  §  8,  IT  i?)?  it  may  provide 
for  the  punishment  of  all  crimes  committed  within  such  district 
or  within  such  places,  as  fully  as  a  state  may  provide  for  the 
punishment  of  crimes  within  its  own  limits.  Congress  has 
therefore  adopted  a  general  criminal  code  for  the  definition 
and  punishment  of  off'ences  within  such  district  and  places. 
Even  though  the  states  may  retain  the  right  to  issue  criminal 
process  into  such  places  they  have  no  authority  to  punish 
crimes  committed  there,  for  the  jurisdiction  of  the  United 
States  is  exclusive.     (See  below,  §  107.) 

57.    Crimes  within  the  Territories. 

So  far  as  territory  which  is  not  incorporated  into  or  ad- 
mitted as  a  state  is  concerned.  Congress  has  power  to  provide 
for  the  punishment  of  crime  under  the  constitutional  authority 
to  make  "  needful  rules  and  regulations  respecting  the  territory 
and  other  property  belonging  to  the  United  States  "  (Art.  IV, 


§  59]  Territorial  and  Implied.  97 

§  3,  ^  2).  So  far  as  portions  of  such  territory  are  organized 
under  a  territorial  government,  the  power  to  define  and  punish 
crimes  is  usually  conferred  by  Congress  on  such  territorial 
government ;  but  Congress  may  still  by  general  legislation  make 
acts  within  the  territories  punishable  as  crimes  against  the 
United  States.  Thus  Congress  has  enacted  statutory  provisions 
for  the  punishment  of  polygamy  within  the  territories  (1862, 
1882),  although  it  has  no  power  to  provide  for  the  punish- 
ment of  such  a  crime  if  committed  within  the  limits  of  the 
states,  for  such  matters  are  subject  to  state  regulation  and  con- 
trol under  the  general  police  power  {Reynolds  v.  United  States) , 

58.    Implied  Power  to  Define  and  Punish  Crimes. 

As  an  incident  to  the  exercise  of  any  of  the  powers  expressly 
given  to  the  federal  government.  Congress  may  provide  for  the 
punishment  as  crimes  of  acts  calculated  to  interfere  with  such 
exercise  of  its  powers.  Thus  under  the  power  to  establish 
post  offices  and  post  roads,  Congress  has  provided  for  the 
punishment  of  a  variety  of  acts  calculated  to  interfere  with  the 
safety  or  efficiency  of  the  postal  service ;  and  under  the  power 
to  lay  and  collect  taxes,  it  has  provided  for  the  punishment  of 
various  acts  of  fraud  or  evasion  with  reference  to  the  payment 
of  import  or  excise  duties.  The  scope  of  the  federal  power 
to  punish  crimes  against  the  operations  of  the  government  is 
therefore  very  extensive,  and  a  general  enumeration  of  the 
classes  of  offences  defined  by  Congress  in  the  exercise  of  its 
implied  powers  would  be  impracticable. 

59.    Ex  Post  Facto  Laws  ;  Bills  of  Attainder. 

By  the  federal  constitution  Congress  is  expressly  prohibited 
from  passing  any  bill  of  attainder  or  ex  post  facto  \2iW  (Art.  I, 
§  9>  IF  3)  ^^^  the  same  prohibition  is  imposed  on  the  states 
(Art.  I,  §  10,  IF  i).  A  bill  of  attainder  is  a  statute  im- 
posing criminal  punishment  without  judicial  trial  for  an  act 
already  committed  without  regard  to  whether  it  was  by  law 
criminal  when  done.  The  Parliament  of  Great  Britain 
assumed  the  authority   to  pass    such   acts  and  to   inflict   the 

7 


98  Punishment  of  Crime.  [§  59 

punishment  thus  imposed.  In  England  the  term  bill  of  at- 
tainder was  limited  to  statutes  inflicting  the  death  penalty  and 
confiscation  of  property  for  acts  already  done,  while  similar 
statutes  imposing  a  less  degree  of  punishment  were  called  bills 
of  pains  and  penalties.  But  the  general  term  bills  of  attainder 
is  understood  in  this  country  as  meaning  a  statutory  imposition 
of  criminal  punishment  for  an  act  already  committed  and  with- 
out any  previous  trial  according  to  due  process  of  law.  It  is 
plain  that  any  such  statute  would  be  contrary  to  the  funda- 
mental conception  of  due  process  of  law,  which  in  criminal 
cases  necessarily  involves  a  judicial  trial  before  imposition  of 
punishment. 

In  a  general  sense  the  term  ex  post  facto  law  might  be 
applied  to  any  law  retrospective  in  its  operations,  but  as  used 
in  the  federal  and  state  constitutions  it  is  interpreted  as  appli- 
cable only  to  retrospective  statutes  providing  for  the  punish- 
ment of  crimes  (  Calder  v.  Bull),  Other  retrospective  statutes 
may  be  valid  unless  they  impair  the  obligation  of  contracts 
or  deprive  persons  of  property  rights,  as  will  be  explained  in 
a  later  chapter.      (See  below,  §  272.) 

An  ex  post  facto  law,  then,  within  the  meaning  of  the  con- 
stitutional prohibitions,  is  a  law  which  makes  acts  criminal 
which  were  not  criminal  when  committed,  or  provides  a  more 
severe  punishment  for  criminal  acts  already  committed,  or 
changes  the  rules  of  procedure  so  as  to  make  it  more  difficult 
for  the  person  accused  of  a  crime  already  committed  to  defend 
in  a  prosecution  for  such  crime  {Kring  v.  Missouri,  and 
Cummings  v.  Missou7'i).  No  matter  how  reprehensible  or 
immoral  an  act  may  be  when  committed,  if  at  that  time  it 
is  not  criminally  punishable  under  the  law  then  existing  it  can- 
not subsequently  be  made  punishable  by  statute ;  and  no 
matter  how  inadequate  the  punishment  provided  for  an  act 
already  committed,  the  punishment  cannot  as  to  that  particu- 
lar act  be  made  made  more  severe  by  statute ;  and  no  matter 
how  technical  or  unreasonable  the  rules  of  evidence  or  the 
rules  of  procedure  may  be,  by  which  one  who  has  committed  a 
crime  may  be   enabled    to  escape  punishment,  such  defects 


§  59]  Ex  Post  Facto  Laws.  99 

in  the  law  cannot  as  to  that  particular  criminal  act  be  remedied 
by  subsequent  legislation.  The  whole  theory  of  the  criminal 
law  is  that  no  one  shall  be  punished  thereunder  unless  in  a 
clear  case  and  in  strict  compliance  with  the  existing  law ;  and 
on  the  whole  such  a  policy  is  deemed  to  be  promotive  of  the 
general  public  welfare,  although  in  particular  cases  it  may 
facilitate  the  escape  from  punishment  of  persons  who  plainly 
ought  to  be  punished. 


CHAPTER  XI. 

PUBLIC    PROPERTY;    THE   EMINENT   DOMAIN. 

60.    References. 

T.  M.  Cooley,  Constitutional  Limitations,  ch.  xv ;  T.  M,  Cooley,  Con- 
stitutional Law,  ch.  xvi,  §  3;  H.  C.  Black,  Constitutional  Law,  ch.  xvi ; 
J.  I.  C.  Hare,  Constitutional  Law,  chs.  xviii,  xix,  xx;  J.  Lewis,  Eminent 
Dofnain  (1900);  H.  E.  Mills,  Eminent  Domain  (2d  ed.,  1888);  A.  B. 
Hart,  Actual  Covet niyiej it  (Amer.  Citizen  Series),  ch.  xviii;  J.  B.  Thayer, 
Cases  on  Constitutional  Law,  945-955;  Kohl  v.  United  States  (1875,91 
U.  S.  367  ;  McClain's  Cases,  1061  ;  Thayer's  Cases,  956) ;  United  States  v. 
Gettysburg  Electric  Railway  Co.  (1896,  160  U.  S.  668;  McClain's  Cases, 
1065);  Baujnanv.  Ross  {iSg-j,  167  U.  S.  548;  McClain's  Cases,  1059); 
Punipelly  v.  Green  Bay  Co.  (1871,  13  Wallace,  166;  McClain's  Cases, 
1050;  Thayer's  Cases,  1060);  Pierce  v.  Dreiv  (1883,  136  Mass.  75; 
McClain's  Cases,  1055;  Thayer's  Cases,  1133);  Central  Bridge  Corpora- 
tion V.  City  of  Lowell  (Mass.  1855,  4  Gray,  474;  McClain's  Cases,  1052)  ; 
Story  V.  New  York  Elevated  Railroad  Co.  (1882,  90  N.  Y.  122;  Thayer's 
Cases,  1095). 

61.    Rights  of  the  Government  to  Acquire  and  Own  Property. 

A  state  government  or  the  federal  government  may,  for  a 
variety  of  purposes,  be  the  owner  of  property.  Although 
neither  has  all  the  attributes  of  complete  sovereignty,  yet  each 
is  a  public  corporation,  and,  as  such,  recognized  in  law  as  capa- 
ble of  acquiring,  possessing,  and  disposing  of  property  as  an 
individual,  (i)  It  may  hold  such  property  as  a  public  asset, 
the  proceeds  of  which,  like  public  moneys  realized  from  any 
other  source,  are  to  be  used  for  the  public  welfare,  but  as  to 
which  the  government  is  not  charged  with  any  specific  duty. 
Thus  the  federal  government  owns  the  public  lands,  to  be  dis- 
posed of  by  direct  appropriation,  or  to  be  sold  and  the  pro- 
ceeds turned  into  the  public  treasury  as  the  government  may 
see  fit ;  but  appropriation  of  public  lands  has  been  made  to 
various  states  to  be  held  and  disposed  of  by  the  states  in  aid 
of  education,  or  of  the  construction  of  public  works,  or  for  like 

100 


§  6i]  Government  Property.  loi 

purposes.  (2)  A  sovereign  government  may  also,  and  neces- 
sarily must,  in  carrying  out  its  functions,  own  property  for  pub- 
lic use.  Thus  a  state  government  will  own  a  capitol  building, 
and  various  other  buildings  for  asylums,  penitentiaries,  and  the 
like  purposes ;  while  a  municipal  corporation,  which  is  in  reality 
a  branch  or  division  of  the  state  government,  may  own  a  city 
hall,  or  school  buildings,  or  municipal  works  operated  for  the 
public  benefit,  such  as  waterworks,  lighting  plants,  street 
railways,  and  the  like.  And  the  federal  government  owns 
public  buildings  in  the  city  of  Washington,  federal  buildings 
in  various  cities,  forts,  arsenals,  and  navy-yards,  military  sup- 
plies of  various  kinds,  and  a  variety  of  other  property  which 
enables  the  government  to  carry  on  its  functions.  (3)  Prop- 
erty may  be  charged  with  a  public  use,  the  title  being  in  the 
federal  or  state  government,  while  the  benefit  inures  directly 
to  the  people.  For  example,  the  public  may  have  or  acquire 
the  right  to  use  land  for  streets  or  highways,  parks,  landing 
places  for  vessels  and  similar  purposes,  and  the  title  to  the 
property  thus  acquired,  or  the  easement  in  it  in  behalf  of  the 
public,  may  be  said  to  be  in  the  government,  although  the  use 
is  not  necessary  in  the  discharge  of  any  of  its  essential  func- 
tions. 

A  manifest  distinction  must  not  be  overlot)ked,  between  the 
property  which  is  subject  to  the  exercise  of  the  sovereign  power 
of  the  government,  that  is,  as  it  may  be  said,  within  the  juris- 
diction of  the  government,  and  the  property  which  belongs  to 
the  government.  All  private  property  within  the  territorial 
limits,  over  which  the  government  exercises  sovereignty,  is 
within  the  jurisdiction  of  the  government ;  but  property  belong- 
ing to  the  government  is,  to  that  extent,  excluded  from  private 
ownership.  Thus  when  the  United  States,  by  treaty  with 
Spain,  acquired  Porto  Rico  and  the  PhiHppines,  the  primary 
result  was  to  give  the  government  of  the  United  States  juris- 
diction over  that  territory,  as  it  had  already  jurisdiction  within 
the  former  limits  of  the  United  States,  but  the  private  owner-* 
ship  of  property  within  the  acquired  territory  was  not  thereby 
affected.     Lands  which  were  already  subject  to  private  owner- 


102  Eminent  Domain.  [§  6i 

ship  remained  subject  to  such  ownership  and  did  not  become 
the  public  property  of  the  United  States.  But  the  pubHc  prop- 
erty of  Spain  within  the  limits  covered  by  the  treaty  became 
the  public  property  of  the  United  States ;  and  land  within 
those  limits,  not  belonging  to  any  person,  became  a  part  of  the 
public  domain  of  the  United  States.  Public  buildings,  forts, 
public  records,  and  other  property  already  devoted  to  use  in 
discharging  the  functions  of  government  became  public  prop- 
erty of  the  United  States  for  like  purposes,  and  the  property 
devoted  to  the  general  uses  of  the  people,  such  as  public 
grounds,  highways,  and  streets,  passed  to  the  United  States  to 
be  held  in  trust  for  the  people. 

The  nature  of  state  ownership  of  property  and  the  power 
which  states  may  exercise  with  reference  to  such  property  is 
not  within  the  scope  of  constitutional  law.  The  right  to  own 
and  control  public  property  is  incident  to  the  existence  of 
government  and  is  implied  in  the  creation  of  the  federal  and 
state  governments.  No  special  provisions  authorizing  such 
ownership  and  control  are  found  in  the  state  constitutions  nor 
in  the  federal  constitution.  It  is  only  with  reference  to  the 
acquisition  of  private  property  for  public  use  that  any  specific 
provision  is  made ;  and  even  without  such  provision  the  power 
of  the  government  to  acquire  property  by  purchase  for  public 
purposes  is  assumed  and  often  exercised. 

Under  a  fictitious  theory  of  the  English  law  that  all  title  to 
real  property  was  originally  derived  from  the  crown  —  but  in 
reality  as  the  result  of  a  wise  public  policy  in  accordance  with 
which  there  must  be  some  ownership  of  all  real  property  — 
land  is  said  to  escheat  to  the  state  when  the  owner  dies  intes- 
tate and  no  one  is  found  entitled  to  take  it  by  descent.  In 
like  manner  some  kinds  of  personal  property,  such  as  abandoned 
vessels  and  stray  cattle,  are  taken  possession  of  by  the  public 
authorities ;  or  the  proceeds  of  such  property  is  required  to 
be  paid  into  the  public  treasury,  subject  to  be  reclaimed  within 
a  limited  time  by  the  owner,  and  in  the  absence  of  such 
claim  on  the  part  of  the  owner  becomes  the  property  of  the 
state  or  some  division  thereof. 


§62]  Nature  of  the  Power.  103 

62.    The  Power  of  Eminent  Domain. 

A  necessary  incident  to  the  power  of  government  is  the 
right,  in  the  interest  of  the  public,  to  control  private  property, 
even  without  the  consent  of  the  owner ;  and  this  is  exercised 
within  the  scope  of  the  police  power,  so  that  the  public  health, 
morals,  and  welfare  will  be  protected.  And  as  will  appear  in 
the  discussion  of  taxation,  the  owner  of  private  property  may 
be  compelled  to  contribute  a  portion  of  it  for  public  purposes. 
(See  below,  §  70.)  Furthermore,  the  public  welfare  or  public 
necessity  may  even  require  the  destruction  of  private  property. 
Thus  it  appears  that  the  owner  of  property  exercises  the  privi- 
leges of  ownership  and  possession  subject  to  the  paramount 
sovereign  power  of  the  state. 

The  owner  of  private  property  holds  it  also  subject  to  a 
paramount  right  in  the  government  to  appropriate  it  to  public 
uses  without  his  consent.  In  this  respect  the  individual  interest 
should  not  be  allowed  to  stand  as  against  the  sovereign  will, 
exercised  for  a  proper  purpose.  This  paramount  right  of  the 
government,  whether  federal  or  state,  to  appropriate  private 
property  to  public  use  is  called  the  power  of  eminent  domain, 
which  is  not  to  be  explained  as  resulting  from  any  paramount 
title  or  reserved  estate ;  nor  as  involving  the  theory  that 
all  property  rights  are  derived  from  the  government,  subject  to 
some  restriction  or  condition  that  the  government  may  retake 
the  property  for  public  purposes ;  but  rather  on  the  theory  that 
the  public  interest  is  greater  than  any  private  interest,  and 
that  personal  rights  must  be  subjected,  so  far  as  necessary,  to 
the  public  welfare.  This  is  a  condition  essential  to  the  exist- 
ence of  organized  society,  and  comes  about  without  constitu- 
tional grant.  Various  state  constitutions  and  the  federal 
constitution  so  far  recognize  the  existence  of  this  right  on 
the  part  of  these  governments  as  to  provide  that  it  shall  be 
exercised  only  on  making  compensation  to  the  owner  whose 
property  is  taken ;  and  these  are  the  only  specific  provisions 
with  reference  to  the  power  of  eminent  domain.  Before  dis- 
cussing the  constitutional   provisions    and    the    various    rules 


I04  Eminent  Domain.  [§62 

which  result  from  their  application,  it  is  desirable  to  indicate 
more  clearly  the  nature  of  the  power  as  distinct  from  other 
governmental  powers  with  reference  to  private  property. 

As  already  suggested,  the  power  of  eminent  domain  is 
distinguished  from  the  police  power  in  that  the  latter  relates 
to  restrictions  on  the  use  of  private  property  in  the  interest  of 
the  public ;  while  the  power  of  eminent  domain  is  exercised 
by  the  taking  of  private  property  and  devoting  it  to  public 
use.  Thus  in  the  exercise  of  the  police  power,  the  owner  of 
intoxicating  liquors,  or  one  who  has  devoted  his  property  to 
the  business  of  manufacturing  such  liquors,  may  be  so  far 
restricted  in  the  sale  or  manufacture  as  to  greatly  impair  the 
value  of  the  property  thus  owned ;  but  so  long  as  his  property 
is  not  taken  from  him  by  the  government  to  be  used  for  some 
public  purpose,  he  cannot  say  that  it  has  been  taken  under 
the  power  of  eminent  domain.  Again,  as  will  be  pointed  out 
in  the  chapter  relating  to  taxation  (see  below,  ch.  xii),  while 
a  property  owner  may  be  compelled  to  make  contribution  for 
the  support  of  the  government  or  for  public  purposes  to  which 
the  government  is  justified  in  making  appropriations,  and  his 
property  may  be  seized  and  sold  in  order  to  compel  the 
making  of  such  contributions,  yet  the  exercise  of  the  power 
of  taxation  does  not  necessarily  involve  the  taking  of  specific 
property  for  public  use ;  and  the  power  of  taxation,  therefore, 
while  in  some  respects  analogous  to  the  power  of  eminent 
domain,  especially  as  to  the  purposes  for  which  it  may  be 
exercised,  is  nevertheless  distinct  from  it.  Nor  does  the  de- 
struction of  private  property  by  the  government,  or  under  its 
authority,  involve  the  exercise  of  the  power  of  eminent  domain. 
For  the  purpose  of  stopping  the  progress  of  a  fire  in  a  city, 
the  public  authorities  may  destroy  buildings,  but  it  cannot 
properly  be  said  that  such  destruction  is  an  exercise  of  the 
power  of  eminent  domain ;  it  is  simply  the  result  of  the  dis- 
charge of  a  duty  arising  from  necessity.  In  military  operations, 
private  property  may  be  destroyed  without  the  power  of 
eminent  domain  being  at  all  involved. 


§64]  Constitutional  Limitations.  105 

63.    Constitutional  Limitations  on  Eminent  Domain. 

Coming  now  to  a  consideration  of  the  specific  constitutional 
provisions  relating  to  the  exercise  of  the  power  of  eminent  do- 
main, two  lines  of  analysis  must  be  considered,  the  one  relat- 
ing to  the  purposes  for  which  the  power  may  be  exercised,  the 
other  to  the  compensation  which  must  be  made  ;  for  while  the 
specific  provisions  are  only  that  private  property  shall  not  be 
taken  for  a  public  use  without  just  compensation,  such  a  pro- 
vision is  interpreted  as  meaning  that  the  state  or  federal  gov- 
ernment shall  not  take  private  property  for  a  private  use 
whether  with  or  without  compensation. 

At  the  outset  it  is  important  to  notice  that  while  the  clause 
of  the  federal  constitution,  "nor  shall  private  property  be 
taken  for  public  use  without  just  compensation  "  (Amend.  V) 
applies  only  to  the  federal  government,  and  makes  appli- 
cable to  that  government  a  restriction  which  is  imposed  on 
state  governments  by  their  various  constitutions,  nevertheless, 
the  power  of  the  states  in  this  as  in  other  respects  is  expressly 
circumscribed  by  the  provision  of  the  federal  constitution, 
that  no  state  shall  deprive  any  person  of  his  property  with- 
out due  process  of  law  (Amend.  XIV)  ;  for  it  is  clear  that 
the  taking  of  property  under  a  pretended  exercise  of  the 
power  of  eminent  domain,  but  for  a  purpose  not  public,  would 
be  a  violation  of  fundamental  property  rights.  The  guaranty 
of  the  Fourteenth  Amendment  as  to  equal  protection  of  the 
laws  has  no  very  direct  application  to  the  exercise  of  the 
power  of  eminent  domain  by  the  states,  for  in  the  nature  of 
things  the  taking  of  specific  property  for  public  use  cannot  be 
in  accordance  with  any  rule  of  uniformity.  Equality  of  burden 
in  this  respect  is  secured  by  the  provision  requiring  just  com- 
pensation to  be  made. 

64.    "What  is  a  Public  Purpose. 

As  has  already  been  suggested,  although  there  is  no  direct 
prohibition  of  the  taking  by  state  or  federal  authorities  of  pri- 
vate property  for  other  than  public  use,  such  a  taking  would 


io6  Eminent  Domain.  [§64 

be  contrary  to  the  principles  of  constitutional  government,  and 
prohibited  by  the  provision  as  to  due  process  of  law,  so  that 
the  question.  What  is  a  public  purpose,  is  fundamental ;  and 
if  it  appears  that  the  purpose  of  the  taking  is  not  a  public  pur- 
pose, the  attempt  of  the  government  to  take  will  be  futile. 
The  purposes  which  have  been  held  to  be  sufficiently  public 
are  those  for  which  the  state  or  the  federal  government  may 
own  property  to  be  used  in  a  discharge  of  its  public  functions, 
or  to  be  held  as  charged  with  a  public  use.  Thus  private 
property  may  be  taken  to  furnish  sites  for  public  buildings, 
to  provide  for  streets  and  highways,  parks  and  other  public 
grounds;  to  provide  the  sources  and  channels  for  water  sup- 
plies for  cities ;  to  provide  cemeteries  in  which  the  dead  may 
be  buried ;  to  provide  outlets  for  the  drainage  of  swamps 
which  should  be  drained  or  otherwise  cared  for  in  the  protec- 
tion of  the  public  health;  to  provide  wharves  and  landing 
places  necessary  for  the  public  use  in  connection  with  navi- 
gable waters  ;  to  facilitate  the  improvement  of  streams  by  locks 
and  dams  so  as  to  promote  public  navigation.  All  these  and 
many  others  analogous  to  them  are  purposes  for  which  private 
property  may  be  appropriated  under  the  power  of  eminent 
domain.  So  the  federal  government  may  take  land  for  post- 
offices  and  other  buildings,  for  forts,  arsenals,  and  navy  yards 
and  for  other  uses  of  that  government  {Kohl  v.  United  States). 

Cities,  counties,  school  districts,  and  other  municipal  and 
quasi-municipal  corporations  which  exercise  by  delegation 
some  of  the  powers  of  government  requiring  the  use  of  pro- 
perty, may  be  authorized  to  take  under  the  power  of  eminent 
domain ;  and  such  public  corporations  may  be  authorized  to 
carry  on  operations  such  as  supplying  water  or  light  or  trans- 
portation for  which  private  property  may  be  necessary  and  may 
be  justly  appropriated  in  proper  proceedings.  Indeed,  it  may 
be  safely  said,  that  anything  which  the  government  or  any  of 
its  branches  is  authorized  to  do  requiring  the  use  of  property 
affords  proper  occasion  for  the  exercise  of  the  power  of  emi- 
nent domain. 

But  the  government  may  exercise  some  of  its  functions  and 


§  64]  What  is  a  Public  Purpose.  1 07 

secure  to  the  public  some  of  the  benefits  to  which  the  people 
are  reasonably  entitled,  by  delegating  authority  to  private  or 
corporate  agencies.  Thus  the  government  may  properly  fur- 
nish facilities  for  transportation  of  person  or  property,  and  in 
doing  so,  it  may  establish  and  improve  streets  and  highways ; 
but  it  may  authorize  means  of  transportation,  as  by  railways, 
ferries,  canals,  and  the  like,  to  be  provided  by  private  persons 
or  by  corporations,  immediately  for  their  own  profit  but  ulti- 
mately for  the  public  good.  So  cities,  instead  of  directly  sup- 
plying water  and  light  to  their  inhabitants,  may  be  authorized 
to  grant  franchises  for  waterworks  and  lighting  plants,  to  cor- 
porations which  derive  revenue  from  furnishing  to  the  public 
facilities  which  the  municipal  government  might  directly  furnish 
if  the  legislature  should  so  provide.  It  is  with  reference  to  these 
public  utility  corporations,  as  they  have  been  called,  that  the 
greatest  difficulty  has  been  experienced  in  determining  the  ex- 
tent to  which  the  government  may  go  in  authorizing  the  taking 
of  private  property  for  public  uses ;  but  it  may  be  regarded  as 
reasonably  well  settled  that  if  the  government  authorizes  a 
private  person  or  corporation  to  render  services  to  the  public 
which  the  government  might  render  for  itself  if  it  saw  fit  so  to 
do,  it  may  confer  upon  such  person  or  corporation  the  power 
to  take  private  property  without  the  owner's  consent  on  making 
compensation,  so  far  as  reasonably  necessary  to  the  performance 
of  the  public  functions  thus  delegated.  Accordingly  it  is  now 
well  settled  that  railroad  companies  may  be  authorized  to  take 
land  for  right  of  way,  depot  grounds,  and  other  necessary  pur- 
poses (^Cherokee  Nation  v.  Kansas  R.  Co.)  ;  that  telegraph 
companies  may  by  proper  proceedings  acquire  the  right  to 
construct  lines  through  private  property ;  that  one  who  desires 
to  establish  a  public  ferry  across  a  river  may  be  authorized  to 
condemn  such  land  as  is  necessary  for  landing  places  on  the  op- 
posite sides  of  the  stream ;  that  a  corporation  desiring  to  erect 
a  toll-bridge  may  be  authorized  to  condemn  land  required  for 
abutments  and  piers ;  that  a  corporation  authorized  to  furnish 
water  to  the  residents  of  a  city  may  be  empowered  to  condemn 
the  land  essential  for  establishing  its  plant  and  laying  its  pipes. 


io8  Eminent  Domain.  [§64 

The  taking  of  private  property  for  the .  utiHzation  and  im- 
provement of  water  power  is  also  regarded  as  a  purpose  for 
which  private  property  may  be  condemned.  Thus  a  person 
having  acquired  the  right  to  construct  a  dam  across  a  stream 
to  secure  power  for  the  operation  of  a  mill  or  other  manufac- 
turing purpose  may  by  condemnation  acquire  the  right  to 
flood  the  lands  of  private  owners  by  thus  damming  the  stream 
{Fumpel/y  v.  Green  Bay  Co.)  The  right  to  thus  practically 
confiscate  private  property  in  order  to  utilize  water  power  for 
private  purposes  rests  on  peculiar  grounds.  It  can  hardly  be 
said  that  the  purpose  is  pubhc  in  any  sense,  and  yet,  if  water 
power  is  a  public  resource  of  which  individuals  may  be  allowed 
to  avail  themselves,  it  is  perhaps  not  unreasonable  to  say  that 
they  may  be  permitted  to  damage  the  property  of  other  in- 
dividuals, on  making  just  compensation,  as  far  as  is  necessary 
to  render  such  water  power  available. 

As  distinct  from  these  uses  which  are  clearly  public  in  their 
nature,  other  uses  incidentally  advantageous  to  the  public  but 
primarily  for  individual  benefit  have  been  held  to  be  private 
uses  for  which  property  cannot  be  taken  without  the  con- 
sent of  the  owner.  The  estabHshment  of  a  manufactory  may 
be  incidentally  of  public  benefit  to  those  living  in  a  particular 
locality,  but  the  property  devoted  to  such  use  nevertheless  re- 
mains private  property  and  the  purpose  is  not  one  justifying 
a  compulsory  taking. 

It  is  to  be  noted  that  in  all  the  cases  where  individuals 
or  private  corporations  are  authorized  to  condemn  private 
property  for  their  uses,  the  nature  of  the  business  which  ihey 
are  to  carry  on  involves  appropriation  of  specific  property 
so  peculiarly  situated  with  reference  to  the  undertaking  that 
other  like  property  could  not  be  substituted  for  it ;  and  there- 
fore, if  the  individual  or  corporation  could  not  compel  the 
owners  of  such  specific  property  to  allow  its  appropriation,  the 
enterprise  might  be  defeated  by  the  unreasonable  demands  of 
such  private  owners.  There  are  many  other  uses  to  some 
extent  public  for  which  private  property  cannot  be  taken  be- 
cause the  enterprise  does  not  necessarily  involve  the  use  of 


§  65]  Kind  of  Property  Taken.  109 

one  piece  of  property  rather  than  another.  But  after  all,  these 
considerations  affect  more  directly  the  expediency  of  authoriz- 
ing private  individuals  or  corporations  to  take  the  property  of 
others,  and  it  may,  perhaps,  safely  be  said  that  conceding  the 
purpose  to  be  public,  the  question  whether  an  individual  or 
corporation  shall  be  allowed  to  condemn  private  property  for 
such  purposes  is  a  matter  of  legislative  discretion. 

Another  illustration  of  what  may  properly  be  deemed  a 
public  purpose  is  furnished  by  cases  involving  the  right  to 
establish  private  roads.  As  a  general  proposition,  lands  may 
be  taken  on  which  to  locate  public  highways ;  while  on  the 
contrary  a  mere  right  of  way  by  which  the  individual  is  bene- 
fited is  not  such  a  purpose.  But  in  order  to  operate  coal 
mines,  stone  quarries,  oil  and  gas  wells,  and  other  like  works 
for  making  available  the  natural  resources  of  particular  por- 
tions of  the  earth's  surface,  it  is  necessary  that  an  outlet  be 
secured  to  highways,  railways,  navigable  streams,  or  other  pub- 
lic avenues  of  transportation.  Therefore  a  roadway  or  rail- 
way or  canal  or  pipe  line  specifically  intended  to  furnish 
necessary  facilities  to  the  individual  or  corporation  operating 
the  mine,  quarry,  or  well,  while  it  is  primarily  for  his  benefit, 
nevertheless  may  be  for  a  public  purpose  to  such  an  extent 
that  the  right  to  pass  over  or  through  private  property  may  be 
taken  therefor. 

65.    Kind  of  Property  Taken ;  Extent  of  the  Right 
Acquired. 

The  illustrations  used  in  the  preceding  paragraph  have  all 
related  to  the  taking  of  land ;  but  there  is  nothing  in  the 
constitutional  provisions  on  the  subject  which  would  limit  the 
power  of  eminent  domain  to  the  taking  of  real  property.  No 
doubt  personal  property  might  be  taken  under  the  same 
restrictions,  but  the  necessity  for  taking  or  authorizing  the 
taking  of  personal  property  will  seldom  arise,  since  in  most 
cases  the  personal  property  of  one  owner  will  be  no  more 
essential  than  that  of  another  owner ;  and  such  property,  as 
far  as  needed,  can  be  secured  by  purchase  from  some  owner 


no  Eminent  Domain.  [§65 

willing  to  sell  for  a  reasonable  price,  and  the  necessity  for 
condemnation  of  the  property  of  an  unwilling  owner  will  not 
arise.  But  in  reference  to  real  property  which  is  of  such 
peculiar  nature  that  different  parcels  or  portions  thereof  can- 
not be  regarded  as  necessarily  interchangeable  or  capable  of 
substitution,  there  may  still  be  a  question  as  to  the  nature 
of  the  interest  therein  or  the  extent  of  the  use  thereof  which 
may  be  appropriated. 

P'or  some  purposes  the  entire,  permanent,  and  exclusive 
ownership  may  be  necessary  and  the  fee  title  may  be  taken, 
compensation  on  the  basis  of  the  entire  value  of  the  property 
being  required  to  be  made.  Thus  if  a  state  or  a  city  were 
condemning  land  to  be  used  as  the  site  of  a  public  building, 
the  state  or  city  would  necessarily  acquire  the  complete  owner- 
ship of  the  land  taken  and  must  pay  damages  accordingly; 
but  for  public  highways,  and  for  the  right  of  way  for  railways, 
the  use  and  occupancy  of  the  surface  is  all  that  is  essential, 
and  it  may  properly  be  provided  that  such  use  only  shall  be 
condemned,  and  compensation  for  such  use  paid,  leaving  in 
the  original  owner  of  the  land  the  right  to  any  beneficial  en- 
joyment of  it  and  especially  of  coal  or  mineral  rights  under  it 
which  he  may  be  able  to  make  without  interfering  with  the 
easement,  as  it  is  called,  which  is  taken  over  the  land  for 
pubHc  purposes.  The  city  may  be  authorized  in  condemning 
land  for  streets  to  take  either  the  fee  or  an  easement  as  the 
legislature  in  its  discretion  may  provide. 

The  distinction  between  the  taking  of  the  fee  and  of  an 
easement  becomes  important  in  considering  the  use  which 
may  be  subsequently  made  of  the  right  condemned.  Thus 
where  an  easement  over  lands  is  condemned  for  use  as  a  high- 
way, leaving  the  title  in  the  owner  for  every  purpose  not  in- 
consistent with  the  public  use  for  highway  purposes,  a  railway 
company  cannot  be  authorized,  without  payment  of  additional 
compensation,  to  locate  its  track  and  operate  its  road  in  such 
highway,  because  this  is  a  further  infringement  on  the  rights 
of  the  property  owner  for  which  he  has  not  received  compen- 
sation ;  inasmuch  as  his  compensation  when  the  highway  was 


§  65]  Kind  of  Property  Taken.  1 1 1 

located  was  determined  with  reference  to  the  use  of  his  prop- 
erty as  a  highway,  and  not  for  some  other  pubhc  purpose. 
Likewise,  it  might  well  be  urged  that  telegraph  or  telephone 
lines  could  not  be  established  along  such  highways  without 
additional  compensation  to  the  property  owner  (^Pierce  v. 
Drew).  The  use  involved  in  the  establishment  of  city  streets 
over  private  property  is  a  more  extensive  use  than  that  in- 
volved in  the  establishment  of  an  ordinary  highway,  and  may 
well  be  considered  as  including  the  construction  and  opera- 
tion of  telegraph  and  telephone  lines,  street  railways,  grading, 
curbing,  paving,  sewering,  and  other  forms  of  improvements 
usually  incident  to  the  pubUc  enjoyment  of  city  streets.  The 
nature  and  extent  of  the  right  acquired  by  condemnation  will 
depend  largely  upon  the  statutory  provisions  under  which  con- 
demnation has  been  made. 

As  a  general  rule,  the  appropriation  of  land  to  one  public 
use  precludes  its  subsequent  appropriation  to  another  and 
inconsistent  public  use.  When  the  state  has  condemned  land 
for  its  use  in  -connection  with  public  buildings,  either  as  fur- 
nishing the  site  therefor  or  the  necessary  surrounding  grounds, 
the  same  land  cannot  be  taken  a  second  time  by  a  city  for  a 
park,  or  by  a  school  district  for  school  purposes.  Such  mat- 
ters are,  after  all,  in  the  discretion  of  the  legislative  power 
(6^.  S.  v.  Gettysburg  Electric  R.  Co.).  A  limitation  of  more 
practical  importance  is  that  a  railway  company,  having  the 
general  authority  to  condemn  land  for  right  of  way,  cannot 
without  direct  legislative  sanction  exercise  the  power  of 
eminent  domain  for  the  purpose  of  acquiring  a  right  of  way 
over  land  already  appropriated  for  public  use  under  the  au- 
thority of  the  state.  For  this  reason  one  railway  company  can- 
not, under  its  general  power  to  condemn,  take  the  right  of 
way  of  another  railway  company,  and  yet  the  legislature  has 
the  authority  to  provide  for  one  railway  crossing  the  right  of 
way  of  another,  or  that  when  any  one  railway  has  abandoned 
the  use  of  its  right  of  way,  it  may  be  condemned  for  the  use  of 
another. 

As  between  the  federal  government  and  a  state  government. 


112  Eminent  Domain.  [§  66 

neither  one  can  authorize  the  condemnation  for  public  use  of 
land  which  has  already  been  acquired  either  by  condemnation 
or  purchase  by  the  other  for  its  public  uses.  Possibly  the 
United  States  government  could  not,  by  any  action  of  the 
state,  be  excluded  from  appropriating  state  property  for  federal 
purposes ;  but  such  questions  are  not  likely  to  arise,  for  it  is 
hardly  conceivable  that  the  federal  government  should  find  it 
expedient  and  necessary  to  interfere  with  any  state  in  the 
enjoyment  and  discharge  of  its  public  rights  and  duties. 

An  individual  or  corporation  which  has  under  proper 
authority  condemned  land  for  public  uses,  though  for  private 
benefit,  has  a  property  right  in  the  land  thus  acquired ;  but  this 
private  right  is  still  subject  to  be  taken  for  other  public  uses 
if  the  legislature  shall  so  provide.  Thus  a  company  which  has 
constructed  a  toll  bridge  across  a  stream  and  has  acquired  nec- 
essary land  for  that  purpose,  has  a  property  right  in  maintain- 
ing such  toll  bridge,  and  deriving  the  profits  incident  thereto ; 
but  under  legislative  authority,  such  property  might  be  taken 
for  the  construction  of  a  public  bridge,  due  compensation 
being  made  to  the  company  (^Cent?'al Bridge  Corp.  v.  Lowell), 
Public  corporations,  however,  do  not  have  a  vested  right  which 
the  legislature  may  not  take  away  without  making  compensation 
to  them,  for  all  their  rights  and  privileges  are  derived  from  and 
subject  to  the  control  of  the  legislative  power.  Questions  of 
this  kind  arise  more  frequently  under  the  constitutional  pro- 
vision as  to  impairing  the  obligation  of  a  contract,  and  the 
extent  to  which  corporate  franchises  either  public  or  private 
may  be  impaired  by  legislation  will  be  discussed  elsewhere. 
(See  below,  §  269.) 

66.    Compensation  for  Property  Taken  by  Eminent  Domain. 

No  doubt  it  is  in  accordance  with  ordinary  conceptions  of 
right  and  justice  that  if  the  property  of  an  individual  be  appro- 
priated by  the  state  for  the  benefit  of  the  general  public,  com- 
pensation should  be  made  to  the  one  whose  property  is 
appropriated.  Thus  while  the  burden  of  providing  for  the 
public  welfare  would  be  thrown  on  a  particular  person,  yet  as 


§  66]  Compensation.  113 

the  money  to  be  paid  is  raised  by  taxation,  bearing  alike  on  all 
taxpayers,  the  burden  is  equalized.     It  is  doubtful,  however, 
whether  in  the  absence  of  express  constitutional  provision,  any 
legislature  would  be  bound,  in  making  provision  for  the  exer- 
cise of  the  power  of  eminent  domain,  to  provide  that  compen- 
sation must  be  paid.     Such  provision  would  be  likely  to  be 
made  as  in  accordance  with  public  policy  and  expediency,  but 
it  does  not  necessarily  follow  that  the  exercise  of  the  power  of 
eminent  domain,  as  one  of  the  powers  incident  to  government, 
would  be  a  violation  of  the  protection  of  property  involved  in 
the  constitutional  requirement  of  "  due  process  of  law,"  even 
though  no  compensation  was  provided  for.    This,  however,  is  a 
matter  of  purely  speculative  interest,  for  the  state  constitutions 
practically  without  exception  contain  the  requirement  that  just 
compensation  shall  be  made  as  a  condition  of  the  exercise  of 
the    power  of  eminent    domain,  and  the  federal  constitution 
(Amend.  V)   contains  the  same  provision,  which  as  already 
stated  applies  only  to  the  federal  government.     It  might,  per- 
haps, be  open  to  argument,  whether  the  attempt  on  the  part  of 
a  state  to  take  private  property  for  public  use  without  just  com- 
pensation would  be  a  violation  of  the  guaranty  found  in  Amend- 
ment XIV  to  the  constitution,  which  is  expressly  applicable  to 
the  states,  but  no  such  question  is  likely  to  arise.     The  cases 
decided  by  the   federal  Supreme   Court  with  reference  to  the 
power  of  the  state  legislatures  in  the  exercise  of  the  right  of 
eminent    domain,    have    almost     uniformly    been    determined 
under    provisions    of   state    constitutions,    except    where   the 
question   has  been   as  to  the  exercise  of  such  power  by  the 
federal  government. 

The  requirement  that  just  compensation  be  made  is  easily 
applied  where  the  entire  right  and  title  to  a  distinct  parcel  of 
property,  such  as  a  certain  tract  of  land  owned  and  used  inde- 
pendently of  and  without  relation  to  other  property  of  the  same 
owner,  is  taken  under  the  power  of  eminent  domain.  In  such 
case,  the  compensation  is  the  value  of  the  property  taken,  esti- 
mated on  the  same  basis  as  if  disposed  of  for  any  other  purpose, 
and  in  estimating  such  value  it  would  be  immaterial  to  consider 

8 


114  Eminent  Domain.  [§66 

whether  some  incidental  benefit  accrued  to  the  owner  from  the 
public  use  to  which  the  land  taken  was  appropriated.  If  it  is 
beneficial  to  the  people  of  a  community  to  have  a  public  build- 
ing erected  in  their  midst,  or  a  park  established,  or  a  railway- 
constructed  and  operated,  such  benefit  is  common  to  many 
persons,  and  the  fact  that  the  owner  of  the  land  taken  for  such 
use  is  benefited  thereby  cannot  well  be  considered  for  the  pur- 
pose of  decreasing  the  amount  of  compensation  which  he 
should  receive  for  his  land.  Nor  on  the  other  hand,  should 
the  compensation  be  affected  by  an  increase  in  the  value  of  the 
land  which  would  have  resulted  in  benefit  to  the  owner  had  the 
public  improvement  been  made  without  the  appropriation  of 
his  land.  Just  compensation  will  be  the  value  of  his  land  as  it 
was  before  and  without  regard  to  the  proposed  public  improve- 
ment. In  some  states  there  is  an  express  provision  that  in 
estimating  the  compensation,  presumptive  benefits  to  the  owner 
of  the  land  shall  not  be  considered.  Thus  by  way  of  illustration, 
if  the  same  individual  owned  two  tracts  of  land  possessed  and 
used  by  him  independently  of  each  other,  and  if  one  tract 
should  be  taken  for  a  public  use,  the  fact  that  the  other  tract 
was  thereby  increased  in  value  should  not  be  taken  into  account 
as  an  offset  to  the  compensation  which  he  ought  to  receive  for 
the  tract  taken,  nor  would  it  be  competent  to  fix  the  value  of 
the  tract  taken  with  reference  to  any  advantage  which  would 
have  beneficially  affected  its  price  had  the  public  improvement 
been  made  without  such  tract  being  taken. 

The  measure  of  compensation  becomes  more  difficult  of 
determination  where  the  thing  taken  is  only  Sh  easement,  that 
is,  a  right  to  a  limited  use  of  the  land,  as  a  right  of  way  for  a 
public  highway  or  railroad  ;  or  where  only  a  portion  of  a  tract 
or  one  of  several  tracts  used  together  for  one  purpose  is  taken. 
With  reference  to  public  highways  and  railroad  rights  of  way, 
it  is  usually  provided  that  the  public  or  the  railroad  company,  as 
the  case  may  be,  shall  acquire  only  an  easement,  that  is,  a  right  to 
such  use  of  the  land  taken  as  may  be  necessary  for  the  purpose, 
leaving  the  owner  still  vested  with  the  title,  subject  to  the  pub- 
lic use,  and  authorized  to  enjoy  the  land  in  any  way  consistent 


§  66]  Compensation.  1 1 5 

with  the  public  use.  Thus  the  owner  of  a  strip  of  land  taken 
for  a  public  highway  might,  no  doubt,  take  out  coal  or  mineral 
from  under  such  strip,  provided  that  in  doing  so  he  did  not 
interfere  with  the  necessary  support  of  the  surface,  and  com- 
pensation should  be  made  to  him,  not  for  the  value  of  the  strip, 
but  the  detriment  he  would  suffer  by  its  use  for  the  designated 
purpose.  When  only  an  easement  is  being  taken  for  a  public 
use,  it  has  been  argued  that  possibly  the  benefit  resulting  to 
the  owner  with  reference  to  his  residuary  right  in  the  land  thus 
subjected  to  an  easement  might  be  considered  as  lessening  the 
damage  to  which  he  is  entitled.  But  such  a  question  could 
scarcely  arise,  for  the  residuary  right  would  seldom  be  of  such 
nature  as  to  be  susceptible  of  any  benefit  by  reason  of  the 
establishment  of  an  easement  in  it. 

More  serious  difiiculty  is  encountered  when  the  right  taken 
for  a  public  use  is  only  that  of  an  easement  in  a  portion  of  a 
tract  of  land,  or  a  portion  of  one  of  several  tracts,  owned  and 
used  for  a  single  purpose.  Thus  if  a  highway  or  railway  is 
located  through  a  tract  of  land  used  as  a  farm,  is  the  owner  of 
the  farm  entitled,  by  way  of  compensation,  to  damages  sus- 
tained as  to  the  entire  farm,  or  only  to  the  damage  which  he 
suffers  as  to  the  particular  strip  of  land  which  is  thus  appro- 
priated? And  on  the  other  hand,  if  his  damages  are  to  be 
computed  with  reference  to  the  injury  to  his  entire  farm,  may 
the  benefits  accruing  to  his  farm,  by  reason  of  the  location 
of  the  highway  or  railway,  be  taken  into  account?  In  at- 
tempting to  answer  the  first  of  these  questions,  it  must  be 
borne  in  mind  that  the  ordinary  constitutional  provision,  re- 
quiring just  compensation  to  be  made,  applies  only  to  the 
person  whose  land  is  taken.  The  location  or  operation  of  a 
railway  in  close  proximity  to  a  man's  land,  occupied  by  him 
for  a  farm  or  residence  or  a  like  purpose,  may  be  seriously 
detrimental,  but  it  does  not  follow  that  under  any  constitu- 
tional provision  he  is  entitled  to  compensation  for  such  injury. 
The  owner  of  land  owns  it  subject  to  the  contingency  that  he 
may  be  injuriously  as  well  as  beneficially  affected  by  the  lawfiil 
use  of  neighboring  property.     He  may  justly  complain  of  a 


ii6  Eminent  Domain.  [§66 

nuisance,  that  is,  an  unlawful  use  of  other  property  which  is 
peculiarly  injurious  to  him ;  but  a  highway  or  railway  or 
schoolhouse  is  not  a  nuisance  in  itself,  and  he  must  endure 
any  discomfort  or  inconvenience  which  results.  Thus  one 
who  has  a  dwelling  upon  a  public  street  may  be  inconven- 
ienced in  the  use  of  his  premises  or  injured  by  depreciation 
thereof  by  reason  of  the  location  of  a  street  railway  along  such 
street,  but  if  the  use  of  the  street  is  lawful,  he  cannot  say 
that  he  is  entitled  to  damages.  Much  less  can  he  contend 
that  any  property  of  his  has  been  taken  for  public  use  without 
just  compensation. 

It  could,  therefore,  be  reasonably  argued,  that  where  a 
strip  of  land  is  taken  for  a  railroad  right  of  way  through  a 
man's  farm,  he  is  entitled  only  to  the  depreciation  in  value  of 
such  strip  due  to  its  being  appropriated  for  a  right  of  way,  and 
not  to  any  compensation  for  depreciation  in  value  of  the 
remainder  of  his  land.  But  it  is  usual  to  provide,  at  least  with 
reference  to  the  taking  of  a  right  of  way  for  a  railway,  that  all 
the  damages  suffered  by  the  land  owner,  a  portion  of  whose 
land  is  thus  taken,  shall  be  allowed  to  him  ;  and  as  a  railroad 
company  can  exercise  the  power  of  eminent  domain  only 
under  such  conditions  as  may  be  imposed  by  the  legislature, 
such  provision,  even  if  it  allows  to  the  land  owner  greater 
damages  than  he  is  entitled  to  under  the  letter  of  the  con- 
stitution, will  be  entirely  valid.  Statutory  provisions  as  to 
the  compensation  to  be  paid  are  usually  given  a  somewhat 
liberal  construction,  and  the  land  owner  can  generally  get  a 
compensation  based  upon  an  estimation  of  the  injury  to  his 
entire  premises,  resulting  from  the  taking  of  a  portion  thereof 
for  a  public  purpose.  As  the  injury  to  the  portion  of  the 
premises  not  taken  does  not  fall  within  the  constitutional  re- 
quirement of  just  compensation,  it  may  be  that  as  against  such 
injury  the  benefit  to  the  remainder  of  the  premises  resulting 
from  the  public  improvement  can  be  taken  into  account  by 
way  of  offset ;  but  this  must  depend  rather  on  the  construction 
of  the  statute  than  on  any  constitutional  provision  (^Baiiman 
v.  Ross), 


§  67]  Method  of  Procedure.  1 1 7 

Some  state  constitutions  contain  broader  provisions  than 
those  above  referred  to,  and  require  that  just  compensation  be 
made,  not  only  to  those  whose  property  is  taken,  but  also 
to  those  whose  property  is  damaged  by  reason  of  the  ap- 
propriation of  private  property  to  public  use.  Especially 
interesting  questions  have  arisen  out  of  the  construction  of 
elevated  railways  in  city  streets,  as  to  the  right  of  the  owners 
of  property  abutting  upon  the  streets  to  have  compensa- 
tion for  damages  to  their  property,  resulting  from  such  con- 
struction ;  but  the  questions  which  have  arisen  in  such  cases 
depend  for  solution  to  so  great  an  extent  upon  statutory  pro- 
visions that  no  general  rule  can  safely  be  announced.  (See 
Story  V.  New  York  Elevated  R.  Co.)  It  must  be  constantly  borne 
in  mind  that  private  property  owners  will  frequently  suffer  inju- 
ries from  the  exercise  of  proper  public  authority  for  which  they 
cannot,  under  any  constitutional  provis^.on,  secure  redress. 

67.    Method  of  Procedure  in  Eminent  Domain. 

It  is  for  the  legislature  to  determine,  in  its  discretion,  the 
propriety  of  exercising  the  power  of  eminent  domain  in  cases 
in  which  it  may  constitutionally  be  exercised ;  that  is  to  say, 
the  legislature  determines  by  statute,  either  general  or  special, 
in  what  cases  private  property  may  be  taken  for  a  public  use, 
subject,  however,  to  the  supervision  of  the  courts,  which  have 
the  final  power  to  decide  whether  or  not  the  use  is  in  such 
sense  public  that  private  property  may  be  condemned  for  that 
purpose.  Thus,  conceding  that  land  may  be  constitutionally 
taken  for  a  public  park,  it  is  for  the  legislature  to  provide  by 
statute  how  and  under  what  circumstances  this  shall  be  done. 
If  it  makes  no  provision  for  public  parks,  then  private  property 
cannot  be  taken  for  such  purpose ;  if  it  does  provide  for  such 
taking,  then  the  method  prescribed  by  the  statute  must  be  fol- 
lowed. Indeed,  the  determination  by  the  legislature  that  any 
specified  purpose  is  a  public  purpose  for  which  private  prop- 
erty may  be  taken,  is  prima  facie  valid,  and  the  courts  will  not 
override  the  judgment  of  the  legislature  in  that  matter  except 
in  a  clear  case. 


1 1 8  Eminent  Domain.  [§  67 

The  legislature  must  also  provide  some  method  of  ascertain- 
ing the  just  compensation  required  by  the  usual  constitutional 
provision  and  enforcing  its  payment;  else  the  attempt  to 
confer  authority  to  take  will  be  ineffectual  on  account  of  the 
constitutional  limitation ;  but  in  general,  the  m.ethod  to  be 
pursued  is  discretionary  with  the  legislature. 

Judicial  proceedings  for  the  condemnation  of  property  are 
required  in  some  states ;  but  the  constitutional  requirement  as 
to  due  process  of  law  does  not  necessitate  an  action  in  court 
to  determine  the  amount  of  the  damage  to  be  paid  in  order 
that  just  compensation  shall  be  made.  It  is  usual  to  provide 
for  the  selection,  by  the  sheriff  or  some  other  ministerial  offi- 
cer, of  appraisers  or  commissioners  to  view  the  premises  and 
report  the  amount  which  the  owner  shall  receive  for  his  prop- 
erty taken,  and  the  damage  suffered  by  him  in  case  he  is 
entitled  to  any  damages  beyond  the  value  of  the  property 
taken.  It  is,  however,  further  provided  in  many  if  not  all  of 
the  states  in  which  it  is  not  required  that  the  original  proceed- 
ing be  in  a  court,  that  there  may  be  an  appeal  from  the  find- 
ing of  the  appraisers  or  commissioners  to  a  court,  in  which 
the  question  as  to  the  amount  to  be  paid  shall  be  judicially 
determined.  In  many  states  it  is  specifically  required  that 
the  compensation  thus  determined  be  paid  before  the  property 
is  taken.  Where  this  is  not  required  by  the  constitution,  it  is 
usually  required  by  statute,  unless  it  may  be  in  cases  where  the 
property  is  taken  directly,  for  the  use  of  the  state  or  a  public 
corporation. 


CHAPTER   XII. 
TAXATION. 

68.   References. 

In  General:  T.  M.  Cooley,  Constitutional  Limitations,  ch.  xiv;  J. 
Story,  Constitution,  ch,  xiv;  T.  M.  Cooley,  Constitutional  Law,  ch.  iv, 
§  I  ;  T.  M.  Cooley,  Taxation  ;  H.  C.  Black,  Constitutional  Law,  ch..xv; 
J.  I.  C.  Hare,  Constitutional  Law,  chs.  xv,  xvi,  xvii ;  The  Federalist, 
Nos.  12,  21,  30-36;  J.  N.  Pomeroy,  Constitutional  Law,  §§  271-312 
A.  B.  Hart,  Actual  Government  (Amer.  Citizen  Series)  eh.  xxi ;  D.  R. 
Dewey,  Fifiancial  History  of  the  United  States  (Amer.  Citizen  Series), 
passim. 

Public  Purposes  :  Loan  Association  v.  Topeka  (1874,  20  Wallace,  655  ; 
McClain's  Cases,  189;  Thayer's  Cases,  1235)  ;  Kingmanv.  City  of  Brock- 
ton (1891,  153  Mass.  255;  McClain's  Cases,  195;  Thayer's  Cases,  1029); 
Lowell  V.  City  of  Boston  (1873,  iii  Mass.  454;  Thayer's  Cases,  1224); 
North  Dakota  v.  Nelson  County  (1890,  i  N.  Dak.  88 ;  Thayer's  Cases, 
1242);  Deering  v.  Peterson  (1898,  75  Minn.  118;  McClain's  Cases,  201); 
State  V.  Osawkee  Toiutiship  (1875,  14  Kansas,  418)  ;  IVurts  v.  Hoagland 
(1885,  114  U.  S.  606;  McClain's  Cases,  203;  Thayer's  Cases,  '768); 
Perry  v.  Keen  (1876,  56  N.  H.  514;  Thayer's  Cases,  1247);  Railroad 
Cotnpany  v.  Otoe  (1873,  16  Wallace,  667;  Thayer's  Cases,  1256). 

Subjects  of  Taxation:  State  Tax  071  Foreign-Held  Bonds  (1872,  15 
Wallace,  300;  McClain's  Cases,  136;  Thayer's  Cases,  1258);  Murray 
V.  Charleston  (1877,96  U.  S.  432;  McClain's  Cases,  1002);  Kirtland  v. 
Hotchkiss  (1879,  100  U.  S.  491;  McClain's  Cases,  142;  Thayer's  Cases, 
1268) ;  Ne%u  Orleans  v.  Stempel  {1899,  175  U.  S.  309) ;  Savings  6^  Loan 
Society  v.  Multnomah  County  (1898,  169  U.  S.421 ;  McClain's  Cases,  146). 

Taxation  of  Government  Agencies:  The  Collector  v.  Bay  (1870, 
II  Wallace,  113;  McClain's  Cases,  153;  Thayer's  Cases,  1378)  ;  Dobbins 
V.  Commissioners  (1842,  16  Peters,  435  ;  Thayer's  Cases,  1352) ;  McCulloch 
V.  Maryland  (1819,  4  Wheaton,  316;  4  Curtis'  Decisions,  415;  McClain's 
Cases,  i;  Thayer's  Cases,  1340;  Marshall's  Decisions,  Dillon's  ed., 
252)  ;  United  States  v.  Railroad  Company  (1873,  ^7  Wallace,  322;  Mc- 
Clain's Cases,  158);  Railroad  Company  v.  Peniston  (1873,  ^^  Wallace, 
5;  Thayer's  Cases,  1833;  McClain's  Cases,  166);  Thomson  v.  Pacific 
Railroad  (1869,  9  Wallace,  579;  McClain's  Cases,  162;  Thayer's  Cases, 
1369)  ;  California  v.  Central  Pacific  R.  R.  Co.  (1887,  127  U.  S.  I  ;  McClain's 
Cases,  167;  Thayer's  Cases,  1394);  Bank  of  Commerce  v.  New  York 
City  (1862,  2  Black,  620;  McClain's  Cases,  170;  Thayer's  Cases,  1357); 

119 


1 20  Taxation.  [§  69 

Bankv.  Supervisors  (1868,  7  Wallace,  26;  McClain's  Cases,  175;  Thayer's 
Cases,  135 1) ;  Wisconsin  Central  R.  K.  Co.  v.  Price  County  (1890,  133 
U.  S.  496;  McClain's  Cases,  178;  Thayer's  Cases,  1397). 

Methods;  Uniformity:  Kentucky  Railroad  Tax  Cases  (1885,  115 
U.  S.  321;  McClain's  Cases,  205);  Kelly  y.  Pittsburg  (1881,  104  U.  S. 
78;  McClain's  Cases,  211  ;  Thayer's  Cases,  1197J ;  French  v.  Asphalt  Co. 
(1901,  i8[  U.  S.  324) ;  Veazie  Bank  v.  Fentio  (1869,  8  Wallace,  533  ;  Mc- 
Clain's Cases,  222  ;  Thayer's  Cases,  1334). 

Commerce  with  Territorial  Possessions  :  Insular  Cases,  De 
Lima  v.  Bidwell  {\(^\,  182  U.  S.  i)  ;  Dowries  v.  Bidwell  {1901,  182  U.  S. 
244;  McClain's  Cases,  2d  ed.  11 19) ;  Dooley  v.  United  States  (1901,  183 
U.  S.  151  ;  McClain's  Cases,  2d  ed.  1226). 

Direct  Taxation  by  Federal  Government  :  Income  Tax  Case, 
Pollock  V,  Farmers^  Loan  &>  Trust  Co.  (1895,  ^57  U.  S.  429,  158  U.  S. 
601  ;  McClain's  Cases,  223). 

69.    General  Powers  of  Taxation. 

One  of  the  powers  inherent  in  government  is  that  of  raising 
revenue  for  the  purpose  of  carrying  on  its  legitimate  functions. 
As  the  functions  of  the  federal  government  are  limited,  so 
the  purposes  for  which  the  powers  of  taxation  may  be  exer- 
cised by  it  are  limited;  but  as  all  the  general  powers  of 
government  are  vested  in  the  different  departments  of  a  state 
government,  unless  denied  to  it  expressly  or  by  implication  by 
the  state  or  federal  constitution,  so  the  purposes  for  which  the 
powers  of  taxation  may  be  exercised  by  a  state  are,  in  the 
nature  of  things,  unlimited,  save  as  specific  limitations  have 
been  imposed.  Nor  is  it  necessary  that  the  state  constitution 
contain  any  grant  of  specific  power  of  taxation  to  any  depart- 
ment of  the  state  government,  for  that  power  is  inherent  in 
any  government  having  general  powers,  and  is  necessarily 
implied  in  the  creation  of  such  a  government.  Therefore  we 
do  not  find  in  state  constitutions  the  power  to  tax  included  in 
any  express  enumeration;  but  some  limitations  on  or  direc- 
tions as  to  the  exercise  of  such  power  are  sometimes  em- 
bodied therein. 

As  between  the  different  departments  of  a  state  govern- 
ment, the  taxing  power  belongs  to  the  legislative  department. 
Probably  the  very  first  conception  of  the  existence  of  legisla- 
tive power  as  distinguished  from  executive  power,  and  of  a 


§  69]  General  Powers.  121 

limitation  upon  executive  power,  was  that  involved  in  the 
assertion  of  the  right  of  some  form  of  representative  as- 
sembly to  vote  taxes  for  the  purposes  of  government,  and  to 
exclude  the  monarch  or  other  ruler  exercising  executive 
functions  from  levying  money  for  the  expenses  of  the  gov- 
ernment otherwise  than  as  provided  for  and  authorized  by 
the  representative  body.  The  long  contest  in  England  for 
supremacy,  between  the  king  and  Parliament,  involved  more 
frequently  controversies  as  to  the  right  of  the  king  to  raise 
money  otherwise  than  by  parliamentary  sanction  than  the 
right  to  exercise  any  other  function  of  government,  and  it 
was  finally  established,  as  a  principle  of  the  English  constitu- 
tion, that  no  taxes  could  be  collected  save  as  they  were 
authorized  by  law  —  that  is,  by  the  action  of  the  legislative 
branch  of  the  government  —  and  that  the  moneys  thus  col- 
lected should  be  expended  only  as  authorized  by  law,  that  is, 
in  accordance  with  appropriations  made  by  Parliament. 

The  policy  of  Parliament  in  this  respect  was,  and  has  con- 
tinued to  be,  to  make  appropriations  only  for  a  short  period, 
so  that  the  king  would  be  unable  to  carry  on  the  government 
for  any  great  length  of  time  without  the  approval  of  Parlia- 
ment. This  principle  is  expressed  in  some  of  the  state  con- 
stitutions and  is  embodied  in  the  federal  constitution  (Art.  I, 
§  9>  IF  7)  ill  the  provision  that,  "No  money  shall  be  drawn 
from  the  treasury  but  in  consequence  of  appropriations  made 
by  law ;  and  a  regular  statement  and  account  of  the  receipts 
and  expenditures  of  all  public  money  shall  be  published  from 
time  to  time."  With  reference  to  the  support  of  armies,  es- 
pecially, has  this  jealous  restriction  of  the  executive  power 
been  recognized  by  the  provisions  of  the  state  and  federal 
constitutions.  It  is  provided  in  the  federal  constitution  (Art. 
I,  §  8,%  12)  that  no  appropriation  of  money  for  the  raising 
and  support  of  armies,  shall  be  for  a  longer  term  than  two 
years.  And  in  order  that  the  power  to  raise  and  appropriate 
money  shall  be  retained  within  the  immediate  control  of  the 
populaf  branch  of  the  legislature,  it  is  usually  provided  in  the 
state  constitutions,  as  it  is  expressly  provided  in  the  federal 


122  Taxation.  [§  70 

constitution  (Art.  I,  §  7,  IT  i),  that  bills  for  raising  revenue 
shall  originate  in  the  more  numerous  branch  of  the  legislative 
body.  But  the  practice  of  Congress,  and  of  many  of  the 
state  legislatures,  illustrates  more  forcibly,  even  than  the  con- 
stitutional provisions,  the  prevailing  conception  that  the  power 
of  taxation  belongs  peculiarly  to  that  branch  of  the  legisla- 
tive body  which  immediately  represents  the  popular  will.  By 
custom  general  appropriation  bills,  that  is,  bills  for  the  expen- 
diture of  money  for  carrying  on  the  government  in  its  various 
operations,  originate  in  the  lower  houses  respectively  of  the 
state  and  federal  legislative  bodies,  and  such  appropriations  are 
usually  made  for  the  shortest  practicable  period,  that  is,  for  the 
term  of  one  Congress  or  one  session  of  the  legislature. 

70.    State  Poorer  to  Levy  Taxes. 

The  purposes  for  which  the  power  of  state  taxation  may  be 
exercised  are  as  limitless  in  their  variety  as  the  special  objects 
for  which  laws  may  be  passed.  Nor  is  the  exercise  of  such 
power  restricted  to  the  general  legislative  department  of  the 
state  government.  It  may  be  delegated  to  subordinate  tri- 
bunals or  legislative  bodies  such  as  the  boards  of  supervisors 
of  counties,  the  councils  of  cities,  the  trustees  of  towns  or 
townships  or  school  districts  and  the  like ;  and  the  purposes 
extend  from  providing  for  the  general  expenses  of  the  state 
government  down  to  the  support  of  the  smallest  branches  of 
the  local  government. 

An  indispensable  characteristic,  however,  of  every  exercise  of 
the  power,  whether  original  or  delegated,  is  that  the  purpose 
for  which  money  is  raised  by  taxation  be  a  public  purpose, 
that  is,  a  purpose  properly  incident  to  the  exercise  of  the 
powers  of  government.  The  legislature  cannot  authorize  the 
collection  of  money  to  be  expended  for  the  private  benefit  of 
individuals.  Difficult  as  it  may  be  to  determine  whether  any 
specific  purpose  is  public,  as  distinguished  from  a  private  pur- 
pose, that  distinction  when  properly  applied  will  determine 
whether  the  money  to  be  expended  may  properly  be  raised 
by  means  of  taxation.     It  is  sometimes  said  that  the  levying 


§  7o]  State  Power.  1 2  3 

of  taxes  for  a  purpose  not  public  is  the  taking  of  private 
property  for  private  use,  or  for  public  use  without  just  com- 
pensation, and  contrary,  therefore,  to  the  provisions  of  the 
state  and  federal  constitutions  regulating  the  exercise  of  the 
power  of  eminent  domain.  But  the  power  of  eminent  domain 
and  the  power  of  taxation  are  wholly  distinct  and  independent 
powers.  They  have  this  in  common  :  that  each  of  them,  in 
the  nature  of  things,  can  be  exercised  for  a  public  purpose 
only ;  and  it  is  sometimes  pertinent  in  determining  whether 
the  purpose  is  one  for  which  the  power  of  taxation  can  be 
exercised,  to  consider  whether  it  is  one  for  which  private 
property  may  be  taken  without  the  consent  of  the  owner. 

The  purposes  of  taxation  may,  however,  be  either  general 
or  special.  General  taxes  may  be  collected  to  provide  a 
general  fund  from  which  the  expenses  of  state,  county,  or 
city  government  may  be  met,  and  such  purposes  are  unques- 
tionably public,  so  that  no  controversy  can  very  well  arise  on 
that  point.  Taxes  may  also  be  levied  for  specific  purposes, 
and  the  validity  of  such  a  tax  may  depend,  therefore,  on 
whether  the  specific  purpose  is  a  public  purpose.  Questions 
of  this  character  do  frequently  arise,  and  their  solution  is  often 
difficult,  but  it  may  safely  be  stated,  as  a  general  proposition, 
that  if  the  purpose  for  which  a  specific  tax  is  levied  is  not  a 
public  purpose,  or  if  an  attempt  is  made  to  incur  a  specific 
indebtedness  for  a  purpose  not  public,  which  indebtedness 
can  only  be  met  by  taxation,  then  the  specific  tax  or  indebted- 
ness will  be  held  invalid.  The  general  ground  on  which  such 
legislation  is  declared  invalid  is  that  it  amounts  to  depriving 
persons  of  their  property  without  due  process  of  law ;  for  the 
guaranty  of  due  process  of  law  relates  not  only  to  the  method, 
but  also  to  the  purpose  for  which  private  property  may  be 
taken  under  the  exercise  of  the  power  of  government.  This 
phase  of  the  taxing  power  will  be  made  the  subject  of  con- 
sideration in  a  subsequent  section. 

It  is  pertinent  here  to  observe,  however,  that  though  taxes 
can  only  be  levied  for  a  public  purpose  where  the  purpose  is 
express  or  specific,  appropriations  of  public   money  are  not 


124  Taxation.  [§  71 

thus  limited  by  any  constitutional  provision.  They  should  be 
for  a  public  purpose,  but  the  decision  as  to  what  is  a  public 
purpose  lies  largely  in  the  discretion  of  the  legislative  depart- 
ment ;  and  no  citizen  has  such  direct  interest  in  the  matter 
that  he  can  call  in  question  the  propriety  of  appropria- 
tions made  from  the  general  funds.  But  where  the  tax  is 
specific,  or  the  statute  authorizes  the  incurring  of  indebtedness 
for  a  specific  purpose  which  can  be  met  only  by  the  raising 
of  money  by  a  special  tax,  the  persons  whose  property  is  sub- 
ject to  be  taken  for  raising  such  tax  may  usually  question  the 
legality  of  the  tax  or  indebtedness  by  appealing  to  the  courts. 

71.    What  is  a  Public  Purpose. 

The  general  scope  of  the  purposes  which  are  public,  and  for 
which,  therefore,  the  power  of  taxation  may  be  exercised,  can 
best  be  illustrated  by  stating  some  of  the  purposes  which  have 
been  held  not  to  be  public  and  for  which,  therefore,  taxes 
cannot  be  properly  levied.  It  is  well  settled  that  the  legisla- 
ture cannot  authorize  cities  and  towns  to  levy  special  taxes  or 
contract  indebtedness  in  aid  of  the  establishment  of  manufac- 
turing enterprises;  for  although  the  establishment  of  manu- 
factories may  be  in  one  sense  beneficial  to  the  public,  and 
especially  to  the  people  of  the  locality  where  they  are  estab- 
lished, nevertheless,  as  they  are  private  enterprises,  the  imme- 
diate benefit  of  any  bonus  or  appropriation  would  enure  to 
the  owners,  while  the  benefit  to  the  public  would  be  merely 
incidental  {Loan  Association  w.  Topeka).  Of  course  money 
might  legitimately  be  raised  by  taxation  or  by  the  incurring  of 
indebtedness  for  the  purpose  of  establishing  municipal  works, 
such  as  waterworks,  lighting  plants,  and  the  like,  to  be  owned 
by  the  city,  for  the  money  would  then  be  used  directly  for  a 
public  purpose. 

It  is  also  settled  that  a  statute  would  not  be  valid  which 
should  authorize  a  city  to  raise  money  by  borrowing  or  by 
taxation,  to  be  loaned  to  private  property  owners  to  enable 
them  to  improve  their  property.  In  one  sense  it  is  to  the 
public  benefit  that  property  be  improved  and  business  be  car- 


§  7i]  What  is  a  Public  Purpose.  125 

ried  on,  but  this  public  benefit  is  incidental  only  to  the  private 
advantage  which  the  property  owners  would  derive  from  the 
use  of  the  public  money.  This  was  the  conclusion  reached 
in  the  case  of  Lowell  v.  City  of  Boston  with  reference  to  a 
statute  in  Massachusetts,  authorizing  the  City  of  Boston,  after 
a  large  destruction  of  private  property  by  a  great  fire,  to  borrow 
money  for  the  purpose  of  loaning  it  to  property  owners  to 
enable  them  to  restore  the  buildings  which  had  been  destroyed. 
For  similar  reasons  it  was  held  by  the  Supreme  Court  of  Min- 
nesota in  Veering  v.  Peterson,  that  statutes  providing  for  the 
loaning  of  money  by  the  state  to  farmers  who  had  suffered  from 
a  general  drought  to  enable  them  to  purchase  seed  with  which 
to  carry  on  their  business  of  farming,  were  invalid ;  for  while 
it  is  incidentally  to  the  public  advantage  that  the  people  be 
enabled  to  carry  on  their  private  enterprises,  the  immediate 
benefit  of  such  an  arrangement  is  to  the  private  persons  to 
whom  the  money  is  loaned.  It  is  true  that  taxes  may  be  col- 
lected and  expended  for  the  relief  of  the  poor,  but  this  is 
regarded  as  a  public  rather  than  a  private  benefit.  The  main- 
tenance of  indigent  persons,  who  are  unable  to  earn  a  living, 
has  always  been  considered  as  among  the  purposes  for  which, 
in  the  exercise  of  reasonable  discretion,  public  money  may  be 
used,  and  however  unwise  public  charity  may  be  in  particular 
cases,  the  power  to  give  poor  relief  cannot  well  be  denied,  as 
not  within  the  scope  of  the  general  legislative  discretion. 

On  the  other  hand,  there  are  many  purposes  for  which  money 
may  properly  be  raised  and  used  which  are  deemed  public 
although  incidental  private  advantage  results  therefrom.  Thus 
bounties  may  be  given  for  acts  which  are  deemed  advantageous 
to  the  public,  such  as  enlistment  in  the  military  service,  the  killing 
of  wild  animals,  or  the  like,  from  which  a  public  advantage  arises, 
although  the  money  is  paid  to  private  individuals.  Public 
money  may  be  expended  for  internal  improvements  such  as  the 
creation  or  preservation  of  water  power,  the  construction  of 
canals,  and  the  improvement  of  the  highways;  although  the 
benefits  of  such  improvements  are  not  equally  enjoyed  by  all 
persons.     So  public  money  may  be  raised  and  expended  for 


1 26  Taxation.  [§  ;« 

the  construction  of  levees,  drains,  and  ditches,  which  promote 
the  safety  and  health  and  welfare  of  great  numbers  of  persons, 
although  it  may  be  that  many  of  those  required  to  pay  such 
taxes  are  not  personally  interested  in  the  improvement.  (See 
IVur^s  V.  Hoagland,)  The  power  of  the  federal  government  to 
impose  a  protective  tariff,  that  is,  a  tax  by  which  money  is 
raised  although  the  rate  of  tax  and  the  subjects  of  taxation  are 
determined  to  some  extent  with  reference  to  incidental  bene- 
fits to  manufacturers,  is  upheld  on  the  ground  that  as  the 
government  has  a  right  to  raise  money  by  taxes  on  imports, 
it  may,  in  its  discretion,  so  adjust  those  taxes  as  to  foster  or 
benefit  particular  industries. 

An  interesting  example  of  the  exercise  of  the  power  to  levy 
taxes  or  create  indebtedness  for  a  public  purpose  but  with 
incidental  private  benefits  is  that  of  granting  public  aid  in  the 
construction  of  railroads.  Such  enterprises  are  usually  organ- 
ized and  carried  on  by  private  capital  and  for  private  profit ; 
and  yet  a  railroad  when  constructed  is  in  some  sense  a  public 
highway,  a  work  of  public  improvement.  The  legislature  may 
regulate  the  rates  to  be  charged  by  the  railway  company,  and 
it  may  authorize  the  company  to  take  private  property  for  its 
right  of  way,  depot  grounds,  and  other  necessary  purposes  with- 
out the  consent  of  the  owner  on  making  him  just  compensation, 
in  the  exercise  of  the  power  of  eminent  domain.  Therefore, 
taxes  voted  or  bonds  issued  by  counties,  cities,  or  towns  in  aid 
of  a  railroad  are  for  a  legitimate  public  purpose,  although  inci- 
dentally for  the  private  advantage  of  those  engaged  in  the 
enterprise.      (See  Ferry  w.Keene  slu^  Railroad  Co.  v.  Otoe.) 

Exemption  from  taxation  in  behalf  of  persons  or  organiza- 
tions devoting  their  property  to  religious,  charitable,  or  edu- 
cational purposes  rests  on  substantially  the  same  ground. 
Exemption  of  private  property  owned  and  used  for  private 
benefit  is  objectionable,  because  a  heavier  burden  is  thereby 
thrown  upon  other  property,  but  if  the  use  to  which  the  prop- 
erty is  put  is  in  some  sense  for  the  public  advantage  rather 
than  for  private  gain,  it  may  be  proper  to  relieve  it  from  the 
general  burden  of  taxation  which  rests  on    other    property. 


§  72]  What  may  be  Taxed.  1 27 

Indeed,  exemptions  have  been  upheld  as  to  property  used  for 
purposes  for  which  taxes  could  not  be  properly  levied  or  pub- 
lic indebtedness  incurred.  Thus  property  used  for  religious 
purposes  is  generally  exempted  from  taxation,  although  the 
levying  of  taxes  for  such  purposes  would  not  be  authorized. 
But  attempts  to  grant  exemptions  to  persons  using  their  prop- 
erty for  purely  private  purposes,  even  though  such  use  may  be 
incidentally  beneficial  to  the  public,  have  generally  been  held 
to  be  unauthorized. 

72.    "WTiat  Property  may  be  Taxed. 

The  subjects  of  taxation  are  as  various  as  the  purposes  for 
which  taxes  may  be  levied,  and  the  largest  discretion  is  allowed 
to  the  legislative  power  in  determining  the  basis  on  which  taxes 
shall  be  imposed.  Universally  those  owning  property,  whether 
tangible  or  intangible,  are  required  to  pay  taxes  in  some  pro- 
portion in  accordance  with  the  value  of  the  property  thus 
owned.  Taxes  may  be  levied  on  real  property  or  personal 
property,  on  occupations,  on  incomes,  on  inheritances,  and  on 
various  other  rights,  benefits,  and  privileges  which  are  enjoyed 
under  the  protection  and  sanction  of  organized  society.  Per 
capita  taxes,  usually  called  poll  taxes,  are  also  levied,  but  it  is 
not  usual  to  attempt  to  raise  any  considerable  general  revenue 
in  that  manner. 

Where  it  is  attempted  to  levy  a  tax  upon  property,  the  prop- 
erty must  be  in  some  sense  within  the  jurisdiction  of  the  tax- 
ing power.  Thus  real  property  may  be  taxed  in  the  state 
within  which  it  is  situated,  but  not  in  another  state.  Per- 
sonal property  may  be  taxed  where  the  owner  resides,  for 
property  of  that  character  is  presumed  to  be  under  the  posses- 
sion and  control  of  the  owner  at  the  place  of  his  domicile. 
Thus  an  individual  may  be  taxed  in  the  state  of  his  residence 
upon  his  moneys  and  credits,  including  notes,  bonds,  and  other 
forms  of  indebtedness  which  he  owns,  even  though  such  notes 
and  bonds  are  secured  by  mortgage  on  property  situated  else- 
where. On  the  other  hand,  personal  property  may  be  taxed 
in  the  state  in  which  it  is  actually  situated  and  held,  though 


128  Taxation.  [§72 

the  owner  may  reside  in  another  state  {New  Orleans  v. 
Stefnpel).  This  may  result  in  double  taxation,  that  is,  in  the 
case  of  personal  property  the  owner  may  be  taxed  on  such 
property  where  he  resides,  though  the  property  itself  is  in 
another  state,  and  the  state  in  which  the  property  actually  is 
may  levy  taxes  thereon  regardless  of  the  fact  that  the  owner 
lives  and  is  taxed  on  such  property  in  another  state.  It  is,  of 
course,  inequitable  that  the  owner  of  property  should  be  com- 
pelled to  pay  taxes  thereon  in  two  distinct  jurisdictions,  but  it 
is  impracticable  entirely  to  avoid  such  results  under  present 
methods  of  taxation. 

Double  taxation  also  results  from  the  levying  of  taxes  on 
real  property  for  its  full  value  in  the  state  where  the  property 
is  situated,  while  one  to  whom  the  owner  owes  indebtedness 
secured  by  mortgage  on  the  property  is  also  taxed  on  the  notes 
evidencing  such  indebtedness  and  the  mortgages  given  to  secure 
them ;  but  it  seems  to  be  impracticable  to  avoid  such  a  result 
without,  in  some  cases,  allowing  persons  to  escape  taxation  on 
property  with  which  they  are  justly  chargeable.  Perfect  equal- 
ity and  equity  as  to  the  burdens  of  taxation  cannot  be  attained, 
and  the  best  that  can  be  done  is  to  adopt  such  a  basis  for  the 
levying  of  taxes  and  such  methods  for  their  collection  as  shall 
on  the  one  hand  afford  necessary  public  revenue,  while  on  the 
other  they  are  apportioned  as  fairly  and  justly  as  may  be  among 
the  persons  and  property  subject  to  the  taxing  power. 

But  taxes  cannot  be  imposed  upon  property  which  is  in  no 
sense  within  the  jurisdiction  of  the  taxing  power.  If  neither 
the  property  nor  the  owner  is  within  the  state,  then  no  tax 
can  be  imposed  by  the  state.  For  instance,  it  has  been  held 
in  Murray  v.  Charleston  that  if  municipal  bonds  are  owned  by  a 
non-resident  of  the  state,  the  legislature  cannot  authorize  the 
municipality  issuing  and  under  obligation  to  pay  interest  on 
such  bonds  to  deduct  a  portion  of  the  interest  by  way  of  taxes 
as  against  the  non-resident  owner  of  the  bonds.  For  similar 
reasons  the  state  in  which  is  situated  real  property  that  is 
mortgaged  to  a  non-resident  cannot  require  that  a  part  of  the 
interest  on  the  mortgage  indebtedness  be  paid  by  the  debtor 


§73]  Of  Government  Agencies.  129 

to  the  state  by  way  of  tax  against  the  non-resident  owner  (^State 
Tax  on  Foreign- Held  Bonds).  But  there  seems  to  be  no  legal 
objection  to  requiring  a  non-resident  mortgagee  to  pay  taxes 
on  his  interest  in  the  mortgaged  real  property  where  the  prop- 
erty is  situated.      (See  Savings  Society  v.  Multnomah  County.) 

73.  Taxation  of  Government  Officers  or  Agencies. 

It  results  from  the  peculiarities  of  our  dual  government, 
involving  the  co-existence  within  the  same  territorial  limits  of 
federal  and  state  authority,  that  neither  government  can  tax 
the  property,  the  agencies,  or  the  instrumentalities  of  the 
other.  Thus  a  state  cannot  tax  lands  or  buildings  belonging 
to  the  federal  government  (^Wisconsin  Central R.  Co.  v.  Price 
County) ,  nor  can  a  state,  without  the  permission  of  the  federal 
government,  tax  as  property  the  bonds  or  currency  issued  by 
the  federal  government,  though  owned  by  private  individuals. 
It  has  frequently  been  said,  and  the  statement  is  considered  to 
be  an  axiom,  that  the  power  to  tax  involves  the  power  to  de- 
stroy, and  if  a  state  could  tax  the  persons  who  owned  bonds  or 
currency  of  the  federal  government,  it  could  thereby  make  it 
more  difficult  for  the  federal  government  to  borrow  money 
by  the  issuance  of  bonds,  interfere  with  its  proper  regulation 
and  control  of  the  currency,  and  thus  impair  its  efficiency. 
Therefore,  a  bank  having  a  portion  of  its  capital  stock  invested 
in  United  States  bonds  cannot  be  directly  taxed  by  the  state 
on  the  portion  of  its  capital  stock  thus  invested  {Bank  of 
Commerce  v.  New  York  City)  ;  but  there  seems  to  be  no  vahd 
reason  why  the  owners  of  shares  of  stock  in  a  bank  should 
not  be  taxed  on  the  basis  of  the  value  of  such  shares,  though 
the  property  of  the  bank  may  be  to  some  extent  invested  in 
United  States  bonds.  For  similar  reasons,  currency  issued  by 
the  United  States  government  was  held  not  to  be  subject  to 
state  taxation  in  the  hands  of  persons  holding  it;  but  the 
statutes  of  the  United  States  now  authorize  the  taxation  of 
United  States  currency,  the  same  as  other  money  held  by 
individuals  (see  Act  of  1894),  and  such  consent  by  the  United 
States  removes  any  objection  to  such  taxation  by  the  states. 

9 


130  Taxation.  [§73 

National  bank  notes  are  subject  to  state  taxation  under  the 
federal  statute  which  authorizes  the  creation  and  operation  of 
the  national  banks  as  well  as  under  the  statute  relating  to 
taxation  of  treasury  notes  just  referred  to.  The  same  reasons 
which  require  the  exemption  of  United  States  property  and 
the  bonds  and  currency  issued  by  the  United  States  from  state 
taxation  except  by  the  consent  of  the  federal  government,  also 
require  that  the  officers  of  the  federal  government  shall  not  be 
taxed  on  their  salaries  by  the  states  in  which  they  reside  ( The 
Collector  v.  Day  and  Dobbins  v.  Commissio7iers'). 

On  the  other  hand,  the  federal  government  cannot  impair 
or  interfere  with  the  legitimate  operations  of  the  state  govern- 
ments. Therefore,  the  federal  government  has  no  authority 
to  exact  an  income  tax  from  state  officers  on  the  basis  of  their 
salaries ;  nor  to  require  federal  stamps  to  be  placed  on  the 
processes  of  state  courts,  or  on  state  bonds  or  warrants,  or  on 
the  bonds  of  state  officers.  Neither  government  has  any 
power  to  interfere  with  the  other  in  the  exercise  of  its  legiti- 
mate functions. 

Some  of  the  functions  of  the  federal  government  ma/ be 
carried  on  by  corporations  organized  under  its  authority. 
Thus  in  McCulloch  v.  Maryland  it  was  held  that  the  property 
of  a  branch  of  the  United  States  Bank,  chartered  by  Congress, 
was  exempt  from  state  taxation.  Under  its  authority  to  regu- 
late post-offices  and  post- roads  and  provide  for  the  carrying 
on  of  its  necessary  operations  in  the  transportation  of  property 
and  troops,  the  federal  government  has  also  granted  charters 
or  franchises ;  and  it  has  been  held  {^Pacific  Railroad  Cases) 
that  the  franchises  of  such  corporations,  and  the  property 
used  by  them  in  carrying  on  the  operations  authorized  by 
the  federal  government,  are  not  subject  to  state  taxation.  But 
the  fact  that  a  railroad  company  enjoys  a  franchise  granted  to 
it  by  the  federal  government  does  not  necessarily  exempt  it 
entirely  from  taxation  by  a  state  in  which  it  carries  on  its  busi- 
ness. The  rule  seems  to  be  that  such  a  corporation  is  exempt 
from  state  taxation  only  so  far  as  it  is  using  its  property  in 
the  performance  of  the  functions  authorized  by  the  federal 
government. 


§  74]  Due  Process  of  Law.  131 

74.  Due  Process  of  Lavr  as  to  Taxation ;  Rule  of 
Uniformity. 

While  the  states  may  exercise  a  large  discretion  as  to  the 
purposes  for  which  taxes  shall  be  imposed,  the  property  from 
which  they  shall  be  derived,  and  the  methods  in  which  they 
shall  be  levied  and  enforced  as  against  such  property,  there  are 
limitations  in  the  federal  constitution  on  the  exercise  of  these 
powers  which  must  always  be  borne  in  mind.  The  provisions 
of  the  Fourteenth  Amendment  to  the  federal  constitution  pro- 
hibiting states  from  depriving  any  person  of  property  without 
due  process  of  law,  and  from  denying  to  any  person  the  equal 
protection  of  the  laws,  are  applicable  to  taxation  as  well  as  to 
other  forms  of  the  exercise  of  state  power.  "  Due  process  of 
law"  in  this  connection  means  that  taxes  must  be  for  a  public 
purpose,  and  imposed  and  collected  in  the  usual  methods  ap- 
plicable to  the  raising  of  revenue.  These  usual  methods  will 
be  briefly  described  in  a  subsequent  section  of  this  chapter. 
But  an  attempt  by  the  state  in  any  method  to  exact  taxes  from 
persons  or  property  not  within  its  jurisdiction,  or  for  a  purpose 
not  essentially  public  in  its  nature,  would  be  an  attempt  to  take 
property  without  due  process  of  law,  and  therefore  unlawful. 
The  state  cannot  under  the  pretence  of  taxation  impair  funda- 
mental individual  rights  to  property.  It  cannot  exact  money 
from  one  person  to  pay  it  over  to  another  for  purposes  which 
are  not  public,  for  this  would  not  be  a  legitimate  exercise  of 
the  power  of  taxation. 

The  very  nature  of  the  power  to  raise  money  by  means  of 
taxation  involves  the  idea  of  an  apportionment  of  the  burden  in 
accordance  with  some  principle  of  uniformity.  Absolute  uni- 
formity is  impracticable  and  it  would  be  equally  inexpedient. 
The  legislative  power  may,  in  its  discretion,  adjust  the  burdens 
of  government  so  as  to  make  them  fall  in  some  measure  in 
accordance  with  the  benefits  resulting  and  the  protection  af- 
forded. Different  classes  of  property  may  be  taxed  in  different 
methods,  and  different  classes  of  persons  may  be  required  to 
contribute  to  the  maintenance  of  government  in  different  ways ; 


132  Taxation.  [§74 

and  as  long  as  the  classifications  made  are  reasonable  and  gen- 
eral, they  will  not  be  objectionable,  though  they  may  result  in 
some  measure  of  inequality.  But  if  the  lands  of  non-residents 
are  taxed  on  a  higher  valuation,  or  at  a  higher  rate  than  the  lands 
of  residents ;  or  if  some  persons  are  required  to  pay  a  higher 
charge  for  the  privilege  of  pursuing  a  particular  occupation 
than  other  persons,  the  uniform  operation  of  the  law  required 
by  the  Fourteenth  Amendment  is  denied,  and  the  distinctions 
thus  attempted  would  be  invalid. 

The  principle  of  uniformity  requires  some  correspondence 
between  burdens  and  benefits.  The  general  advantages  of 
government  as  to  the  protection  of  persons  and  property  con- 
stitute all  the  benefits  necessary  to  sustain  a  general  tax 
applicable  to  persons  and  property  within  the  jurisdiction  of 
the  state;  but  as  to  municipal  taxes  and  special  taxes  for  im- 
provements, the  question  may  sometimes  be  raised  whether 
the  person  or  property  taxed  is  within  the  benefit  of  the  tax 
in  such  sense  as  to  authorize  its  imposition.  Thus  general 
municipal  taxes  may  properly  be  laid  on  all  property  within 
the  municipal  limits ;  but  if  it  is  attempted  to  bring  within  the 
municipal  limits  agricultural  land,  which  is  not  in  any  way 
benefited  by  the  municipal  government,  it  may  well  be  said 
that  the  owner  of  such  property  does  not  belong  to  the  class 
of  persons,  and  his  property  does  not  belong  to  the  class  of 
property,  which  can  properly  be  subjected  to  such  taxes;  and 
that  the  tax  is  not  therefore  levied  according  to  the  principle 
of  uniformity.      (See  Kelly  v.  Pittsburg.) 

Similar  considerations  apply  to  special  assessments  for  public 
improvements,  such  as  the  paving  of  streets,  the  construction 
of  sewers,  and  the  like.  These  objects  are  sufficiently  public 
in  their  nature  to  justify  a  general  municipal  tax  therefor  upon 
all  property  within  the  municipaUty.  But  property  deriving  a 
peculiar  advantage  from  such  improvements  may  properly  be 
required  to  pay  a  special  tax  therefor  by  reason  of  such  special 
benefit  (see  French  v.  Asphalt  Co.),  and  the  question  often 
arises  whether  specific  property  is  justly  included  within  the 
class   of  property  deemed    to    be    especially  benefited,    and 


§75]  Specific  Limitations.  133 

whether  the  tax  is  apportioned  according  to  the  benefit  en- 
joyed. These  are  questions  to  be  primarily  determined  by 
the  taxing  power,  but  it  is  for  the  courts  to  say  ultimately,  in 
any  particular  case,  whether  the  determination  reached  is 
reasonably  consonant  with  the  requirement  of  uniformity. 

License  taxes  on  occupations  are  a  proper  means  of  raising 
revenue,  but  they  are  often  imposed  as  a  means  of  police 
regulation  of  occupations  or  forms  of  business  which  are  prop- 
erly subject  to  such  regulation,  and  as  thus  imposed,  the  same 
restrictions  as  to  uniformity  are  not  applicable  as  where  the 
object  is  to  raise  revenue  only.  Licenses  to  sell  intoxicating 
liquors  may  be  restricted  to  a  limited  number  of  persons  in 
the  city  and  refused  to  others ;  or  licenses  to  practice  medi- 
cine or  dentistry  or  pharmacy  may  be  denied  to  those  not 
having  certain  qualifications ;  or  licenses  may  be  exacted  from 
those  engaged  in  certain  kinds  of  business,  although  not  re- 
quired of  those  engaged  in  other  kinds  of  business.  An  exam- 
ple of  an  exaction  in  the  form  of  a  tax  which  is  properly 
imposed  for  other  reasons  than  to  raise  revenue  is  the  federal 
tax  on  the  currency  of  state  banks.  As  an  exercise  of  the 
taxing  power,  such  an  exaction  could  not,  perhaps,  be  justi- 
fied ;  but  the  power  of  the  federal  government  to  regulate  the 
currency  is  a  sufficient  justification  for  an  exaction,  the  result 
of  which  is  practically  to  prevent  the  issuance  of  paper  money 
by  corporations  chartered  by  a  state,  and  to  limit  the  use  of 
such  money  to  the  notes  issued  by  the  federal  government 
directly,  and  national  bank  notes  issued  by  corporations  char- 
tered under  its  authority  (  Veazie  Bank  v.  Fenno) . 

75.    Specific  Limitations  on  State  Fewer  to  Tax. 

Aside  from  the  general  limitations  resulting  from  the  require- 
ments of  due  process  of  law  and  equal  protection  of  the  laws, 
the  federal  constitution  contains  some  specific  limitations  on 
the  state  taxing  power.  The  laying  and  collection  of  duties, 
imposts,  and  excises  is  a  legitimate  method  of  exercising  the 
power  of  taxation ;  but  by  the  federal  constitution  authority 
to  raise  taxes    by   this  method    is   specifically  conferred    on 


134  Taxation.  [§  76 

the  federal  government  (Art.  I,  §  8,  IF  i),  and  while  this 
does  not  in  itself  exclude  the  exercise  of  like  power  by  the 
states,  nevertheless  it  is  specifically  provided  that  *'  No  state 
shall  without  the  consent  of  the  Congress  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws "  (Art.  I, 
§  10,  %  2),  and  that  "No  state  shall  without  the  consent 
of  Congress  lay  any  duty  of  tonnage"  (Art.  I,  §  10,  ^  3). 
These  restrictions,  while  they  relate  specifically  to  the  state 
power  to  tax,  seem  to  be  intended  to  prevent  interference  by 
the  states  with  freedom  of  commercial  intercourse.  The  pro- 
vision that  Congress  shall  have  power  "  To  regulate  commerce 
with  foreign  nations  and  among  the  several  states  and  with  the 
Indian  tribes"  (Art.  I,  §  8,  f  3),  has  been  interpreted  also 
as  restricting  the  levying  of  state  taxes  on  foreign  or  interstate 
commerce.  The  extent  to  which  this  clause  restricts  state 
taxation  will  be  considered  in  the  chapter  relating  to  the  regu- 
lation of  commerce.  (See  below,  §  92.)  The  validity  of 
state  inspection  laws,  and  of  state  taxes  on  boats  and  vessels, 
has  been  the  subject  of  some  discussion,  but  the  matter  is  not 
of  sufficient  general  importance  to  justify  further  elaboration. 
It  is  sufficient  to  say  that  few  attempts  have  been  made  by  the 
states  to  impose  taxes  for  the  enforcement  of  state  inspection ; 
and  that  taxes  on  boats  and  vessels  have  been  sustained  where 
they  are  reasonably  calculated  to  reach  the  value  of  the  prop- 
erty itself,  so  far  as  it  is  within  the  jurisdiction  of  the  states, 
the  tonnage  tax  prohibited  being  considered  to  be  a  tax  on 
boats  and  vessels  based  upon  their  capacity  rather  than  their 
value. 

76.    Methods  of  State  Taxation. 

The  requirement  of  due  process  of  law  does  not  necessitate 
judicial  proceedings  to  determine  the  amount  of  tax  to  be  paid 
by  each  person  and  to  enforce  the  tax  as  against  his  property. 
(See  Kentucky  Railroad  Tax  Cases.  Also  see  below,  §  257.) 
The  usual  method  of  assessment  and  levy  for  the  purpose  of 
determining  the  amount  of  tax  to  be  paid,  and  of  seizure  and 


§  -j-]^  State  and  Federal.  135 

sale  to  enforce  such  payment,  if  the  tax  becomes  delinquent, 
are  themselves  due  process  of  law.  But  there  must  be  a  pro- 
cedure of  some  kind  to  fix  the  valuation  of  the  property  for  the 
purposes  of  taxation,  and  some  apportionment  of  taxes  on  the 
basis  of  such  valuation,  and  the  taxpayer  must  have  some  kind 
of  notice  to  enable  him  to  pay  before  his  property  is  seized. 
The  ordinary  public  taxes  which  are  based  on  property  owned 
are  usually  apportioned  by  means  of  an  assessment  of  the  value 
of  the  property,  made  by  proper  officers,  for  determining  the 
amount  belonging  to  each  taxpayer ;  and  following  the  assess- 
ment there  is  usually  a  levy  made  by  some  proper  board  or 
tribunal  which  determines  the  amount  which  each  property 
owner  must  pay  in  order  that  the  desired  aggregate  sum  of 
public  money  shall  be  raised.  As  to  the  general  public  taxes 
which  are  levied  in  accordance  with  law  on  assessments  regu- 
larly provided  for,  the  law  itself  constitutes  sufficient  notice, 
and  the  taxpayer  is  bound  to  ascertain  the  sum  required  of 
him  and  pay  it  within  the  time  required  by  the  general  statutes ; 
but  as  to  special  taxes  for  public  improvements  and  the  like, 
the  taxpayer  is  entitled  to  some  specific  notice  of  the  proceed- 
ing in  which  it  is  to  be  determined  whether  he  or  his  property 
is  within  the  class  subject  to  the  tax,  and  of  the  amount  which 
he  is  required  to  pay,  so  that  he  shall  have  opportunity  to 
make  payment.  On  failure  to  pay  either  a  general  or  a  special 
tax,  the  property  of  the  taxpayer  may  be  seized  and  sold; 
but  he  may  by  judicial  proceedings  question  the  validity  of  the 
tax  sought  to  be  exacted. 

77.    Federal  Taxation. 

As  the  federal  government  is  one  of  enumerated  powers 
rather  than  of  general  powers,  we  find  the  power  to  levy  taxes 
expressly  conferred  upon  Congress  in  the  federal  constitution. 
Perhaps  the  power  to  levy  taxes  for  the  purpose  of  carrying 
out  the  objects  for  which  the  federal  government  was  created 
would  have  been  necessarily  implied  without  specific  provi- 
sion ;  but  one  of  the  difficulties  attending  the  form  of  govern- 
ment provided  for  by  the  Articles  of  Confederation  was  that  it 


136 


I'axation.  [^77 


could  not  exercise  the  power  of  taxing  persons  or  property,  but 
was  dependent  on  contributions  from  the  state  governments ; 
and  while  the  Congress  of  the  Confederation  could  appor- 
tion among  the  states  the  charges  of  war  and  of  other  expenses 
incurred  for  the  common  defence  and  welfare,  no  method 
was  provided  by  which  the  states  could  be  compelled  to  raise 
and  turn  over  to  the  federal  government  the  sums  thus  appor- 
tioned to  them.  It  was  to  be  expected,  therefore,  that  the 
framers  of  the  federal  constitution  should  incorporate  therein 
some  specific  provision  by  which  the  federal  government 
should  have  this  power  so  essential  to  its  existence.  This 
specific  authority  is  given  in  the  following  clause  :  "  The  Con- 
gress shall  have  power :  —  To  lay  and  collect  taxes,  duties, 
imposts  and  excises,  to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the  United  States ; 
but  all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States"  (Art.  I,  §  8,  If  i).  The  power  to 
tax  for  the  purpose  of  raising  public  money  is  thus  specifically 
given,  and  the  purposes  for  which  taxes  may  be  levied  and 
collected  are  as  broad  as  the  needs  of  the  government  can 
possibly  be,  for  any  public  purpose  within  the  scope  of  the 
powers  given  to  the  federal  government  would  fall  within  the 
authority  to  raise  revenue,  "  To  pay  the  debts  and  provide  for 
the  common  defense  and  general  welfare."  Within  this  gen- 
eral authority,  it  is  for  Congress  to  determine  what  is  a  proper 
purpose  and  the  method  and  extent  of  exercising  the  taxing 
power.  The  power  to  tax  thus  given  to  Congress  undoubtedly 
extends  in  a  general  way  to  all  persons  and  property  within 
the  jurisdiction  of  the  United  States.  But  the  further  specifi- 
cation of  the  power  to  lay  and  collect  duties,  imposts,  and 
excises,  with  the  concluding  limitation  that  they  shall  be  uni- 
form throughout  the  United  States,  suggests  a  distinction  be- 
tween such  duties,  imposts,  and  excises  which  are  required  to 
be  uniform,  and  direct  taxes  which,  by  other  provisions,  are 
required  to  be  apportioned  among  the  several  states  according 
to  population  (Art.  I,  §  2,  ^  3,  and  §  9,  IF  4).  These  two  forms 
of  federal  taxation  will  therefore  be  separately  considered. 


§  78]         Duties,  Imposts,  and  Excises.  137 

78.    Duties,  Imposts,  and  Excises. 

As  a  matter  of  practical  expediencyj  the  power  of  federal 
taxation  for  the  raising  of  pubUc  revenue  is  exercised  ahnost 
entirely  by  the  levy  and  collection  of  duties,  imposts,  and 
excises.  These  are  merely  different  forms  of  taxes.  "  Duties 
and  imposts "  cover  levies  on  imports  and  exports  of  com- 
modities; and  the  power  to  levy  these,  in  its  discretion,  is 
restricted  only  by  two  clauses,  the  one  included  in  the  general 
provision  already  quoted  that  they  shall  be  uniform  ;  and  the 
other  in  the  clause  providing  that,  "  No  tax  or  duty  shall  be 
laid  on  articles  exported  from  any  state"  (Art.  I,  §  9,  ^  5). 
In  the  exercise  of  the  power  to  levy  and  collect  duties  and  im- 
posts, import  duties  are  levied  which  are  either  (i)  specific, 
that  is,  in  accordance  with  quantity,  or  (2)  a^  va/orem,  that  is, 
in  accordance  with  value,  upon  very  many  classes  of  goods 
brought  from  foreign  countries ;  and  from  this  source  a  large 
portion  of  the  revenue  of  the  United  States  government 
is  derived.  The  extent  to  which  this  taxing  power  shall 
be  carried,  and  the  methods  in  which  it  shall  be  exercised, 
are  peculiarly  within  the  discretion  of  Congress,  and  as  the 
states  cannot  levy  taxes  on  imports  or  exports,  as  already  in- 
dicated, this  is  a  source  of  revenue  available  only  to  the  United 
States. 

The  term  "excises"  applies  to  taxes  laid  upon  the  manu- 
facture, sale,  or  consumption  of  commodities  within  the  country, 
upon  the  privilege  of  pursuing  occupations,  upon  corporate 
privileges,  and  the  Hke.  The  power  of  levying  and  collecting 
such  taxes  is  exercised  in  a  variety  of  ways.  Thus  manufac- 
turers of  alcohol  and  various  forms  of  liquors  containing  alcohol, 
and  manufacturers  of  tobacco  in  various  forms,  are  required  to 
pay  taxes  on  their  manufactured  products ;  sellers  of  such 
products,  whether  at  wholesale  or  retail,  are  required  to  pay 
a  license  fee  for  the  privilege  of  carrying  on  their  business ; 
license  fees  are  also  required  for  the  privilege  of  conducting 
other  forms  of  business  or  engaging  in  specified  occupations ; 
and  when  specific  emergencies  have  necessitated  special  rev- 


138 


Taxation.  [§78 


enues,  stamp  duties  have  been  imposed  on  various  forms  of 
commercial  transactions.  Some  corporations  chartered  by  the 
federal  government,  such  as  national  banks,  are  required  to  pay 
taxes  for  the  privilege  of  exercising  their  franchise  rights; 
licenses  are  exacted  from  those  who  employ  vessels  in  foreign 
commerce  under  the  jurisdiction  of  the  United  States,  or  who 
engage  in  the  coast  trade,  or  in  navigating  the  navigable  waters ; 
those  who  make  use  of  the  postal  facilities  afforded  by  the  fed- 
eral government  are  required  to  make  compensation  therefor 
as  Congress  in  its  discretion  shall  deem  expedient ;  and  in  a 
variety  of  other  ways  persons  who  enjoy  specific  benefits  from 
the  operation  of  the  federal  government  are  compelled  to  con- 
tribute to  its  support.  There  seems  to  be  no  specific  limita- 
tion on  the  power  of  the  United  States  to  levy  excise  taxes  ex- 
cept that  already  indicated,  viz.,  excises  like  duties  and  imposts 
must  be  uniform  throughout  the  United  States. 

Since  the. acquisition  by  the  United  States  of  Porto  Rico  and 
the  Philippines,  serious  difficulties  have  arisen  in  determining 
whether  the  requirement  that  "  all  duties,  imposts  and  excises 
shall  be  uniform  throughout  the  United  States  "  (Art.  I,  §  8, 
^  i),  prevents  the  levying  of  duties  on  goods  brought  from 
such  territorial  possessions  into  the  ports  of  the  United  States. 
It  has  been  settled  in  the  case  of  De  Lima  v.  Bidwell  and  the 
other  insular  cases,  that  since  the  final  acquisition  of  such 
territorial  possessions  by  treaty  with  Spain,  they  are  not  foreign 
territory,  and  that  the  ordinary  tariff  duties  on  goods  brought 
into  the  United  States  from  foreign  countries  are  not  applicable. 
This  being  so,  the  question  is  whether  special  provisions  as  to 
tariff  duties  on  goods  brought  from  those  islands  into  the 
United  States  are  valid  under  the  clause  just  quoted  as  to  uni- 
formity. The  view  which  seems  to  be  generally  accepted  is 
that  the  uniformity  provided  for  is  uniformity  as  among  the 
states,  that  is,  throughout  the  territory  of  the  states  which  origi- 
nally constituted  the  United  States,  and  those  states  which  have 
since  been  admitted  to  the  Union;  and  therefore  that  the 
requirement  of  uniformity  does  not  apply  to  duties  on  goods 
exported  from  the  insular  possessions  into  the  United  States ; 


§79]  Federal  Direct.  139 

and  accordingly  a  tariff  duty  on  exports  from  such  insular 
possessions  has  been  sustained.  It  would  seem  clear  that  the 
clause  prohibiting  the  levying  of  duties  by  the  United  States 
on  goods  exported  from  any  state  (Art.  I,  §  9,  IT  5)  is  not 
applicable  to  duties  on  exports  from  these  insular  possessions. 
In  fact,  the  power  of  Congress  to  levy  duties  on  imports  and 
exports  to  and  from  such  possessions  in  order  to  maintain 
territorial  governments,  and  not  to  raise  revenue  for  the  sup- 
port of  the  general  government,  is  not  derived  from  the  taxing 
clause  of  the  federal  constitution  but  by  implication  from  the 
power  to  "  make  all  needful  rules  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  United  States  " 
(Art.  IV,  §  3,  ^  2),  and  is  not  subject  to  the  rule  that  duties, 
imposts,  and  excises  shall  be  uniform. 

79.    Direct  Taxation  by  the  Federal  Go vernment ; 
Income  Tax. 

While  the  revenues  of  the  United  States  have  usually  been 
derived  almost  entirely  from  duties,  imposts,  and  excises,  as  to 
which  the  rule  of  uniformity  is  applicable,  the  federal  govern- 
ment is  not  limited  to  such  sources  for  the  raising  of  revenue. 
It  is  within  the  scope  of  its  taxing  power  to  levy  per  capita 
taxes,  or  direct  taxes  on  property,  but  such  taxes  are  required 
to  be  apportioned  among  the  states  in  accordance  with  the 
population,  for  it  was  provided  in  the  federal  constitution  as 
originally  adopted  that,  "Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several  states  which  may  be 
included  within  this  union,  according  to  their  respective  num- 
bers, which  shall  be  determined  by  adding  to  the  whole  number 
of  free  persons,  including  those  bound  to  servitude  for  a  term 
of  years,  and  excluding  Indians  not  taxed,  three-fifths  of  all 
other  persons"  (Art.  I,  §  2,  ^  3),  and  that,  "  No  capitation  or 
other  direct  tax  shall  be  laid,  unless  in  proportion  to  the  census 
or  enumeration  hereinbefore  directed  to  be  taken "  (Art.  I, 
§  9,  ^  4).  The  "census  or  enumeration"  referred  to  in  the 
latter  provision  has  reference  to  the  enumeration  provided  for 
in  connection  with  the  first  provision  which  furnished  a  basis 


140  Taxation.  [§79 

for  determining  the  ratio  of  representation  among  the  states 
The  apportionment  of  representation  has  been  changed 
(Amend.  XIV,  §  2),  so  that  representatives  are  now  "ap- 
portioned among  the  several  states  according  to  their  re- 
spective numbers,  counting  the  whole  number  of  persons  in  each 
state,  excluding  Indians  not  taxed  "  ;  but  it  still  remains  true 
that  direct  taxes,  and  also  capitation  taxes,  must  be  appor- 
tioned among  the  states  on  the  same  basis  as  representatives, 
that  is,  on  the  basis  of  enumeration  of  the  population.  There- 
fore, if  the  federal  government  should  desire  to  raise  revenue 
by  a  capitation  tax,  it  would  not  be  possible  for  it  to  do  so  by 
exacting,  for  instance,  a  fixed  sum  from  each  male  person  over 
twenty-one  years  of  age  within  the  limits  of  its  jurisdiction ; 
but  it  must  determine  how  much  each  person  shall  pay  by  ,ap- 
portioning  the  aggregate  amount  to  be  raised  among  the  several 
states  in  accordance  with  their  respective  populations,  as  ascer- 
tained by  the  census,  and  then  determine  how  much  each  per- 
son of  the  class  of  persons  required  to  pay  the  capitation  tax 
and  residing  in  any  particular  state  must  pay  in  order  to  make 
up  the  total  amount  of  tax  apportioned  to  that  state.  Likewise, 
if  the  United  States  should  desire  to  raise  revenue  by  a  direct 
tax  on  real  property,  it  could  not  tax  all  the  lands  within  the 
jurisdiction  of  the  United  States  on  the  basis  of  value,  nor  on 
the  basis  of  extent,  that  is,  for  instance,  at  so  much  per  acre ; 
but  it  must  apportion  among  the  several  states  in  accordance 
with  their  population  the  total  amount  of  the  revenue  to  be 
raised  by  taxes  upon  real  property  and  must  then  provide  the 
rate  at  which  real  property  in  each  of  the  several  states  shall  be 
taxed  in  order  to  raise  in  each  state  the  sum  apportioned  to 
that  state. 

The  inconvenience  and  difficulty  which  would  attend  the  levy 
of  capitation  and  direct  taxes  in  accordance  with  this  method 
are  so  great  that  no  successful  effort  has  ever  been  made  or 
probably  ever  will  be  made  to  raise  revenue  in  this  manner,  al- 
though several  times  attempted.  The  object  of  these  provisions, 
however,  was  evidently  not  to  render  such  taxes  impossible,  but 
to  preserve  some  proportionate  relation  between  representation 


§  79]  Federal  Direct.  141 

and  taxation  of  this  character.  The  discussion  attending  the 
incorporation  of  these  provisions  into  the  federal  constitution 
seems  to  indicate  a  purpose  to  attach  to  the  advantage  which 
the  states  in  which  slavery  existed  were  given  by  way  of  ad- 
ditional representation  on  account  of  including  in  their  enum- 
eration three-fifths  of  the  slave  population,  a  corresponding 
burden  by  way  of  imposition  of  a  higher  proportion  of  capi- 
tation and  direct  taxes.  At  the  time  of  the  adoption  of  the 
federal  constitution,  the  elective  franchise  in  states  where 
slavery  existed  was  limited  to  free  white  persons,  and  the  result 
of  giving  such  states  representation  on  the  basis  of  an  enumer- 
ation of  population  which  included  three-fifths  of  the  slave 
population  was  that  the  voters  in  those  states  had  a  larger  pro- 
portional representation  in  Congress  than  had  the  voters  in 
states  not  including  any  slave  population.  As  capitation  and 
direct  taxes  have  not  generally  been  resorted  to  as  a  source  of 
revenue,  the  states  which  had  the  slave  population  did  not  actu- 
ally suffer  any  detriment  to  correspond  with  the  increased 
representation  thus  given  to  them ;  and  since  the  amendment 
of  the  constitution  abolishing  slavery  and  apportioning  repre- 
sentation in  accordance  with  actual  population,  there  seems  to 
be  no  sufficient  reason  for  perpetuating  the  requirement  that 
capitation  and  direct  taxes  shall  be  apportioned  among  the 
states  in  accordance  with  population,  rather  than  imposed  on  all 
persons  and  property  within  the  limits  of  the  United  States  in 
accordance  with  the  rule  of  uniformity ;  but  until  the  constitu- 
tion shall  be  amended  in  this  respect,  the  difficulties  attending 
the  levy  of  capitation  and  other  direct  taxes  must  remain. 

Within  comparatively  recent  years  there  has  been  a  notable 
illustration  of  the  practical  effect  of  the  provision  requiring 
apportionment  of  direct  taxes.  In  1S94  Congress  provided 
for  a  tax  on  incomes,  that  is,  a  tax  on  individuals  graduated 
on  the  basis  of  the  income  of  each.  This  provision  seems  to 
have  been  adopted  in  order  to  supply  anticipated  deficiencies 
in  import  duties  to  result  from  a  radical  change  of  tariff 
schedules.  But  it  was  held  by  the  Supreme  Court  of  the 
United  States  in  the  Income  Tax  Case  that  a  tax  on  incomes 


142  Taxation.  [§  79 

was  in  effect  a  tax  on  the  ownership  of  the  property  from  which 
the  income  was  derived ;  and  that  whether  this  property  was 
realty  or  personalty,  such  a  tax  was  a  direct  tax  and  could 
only  be  levied  on  the  basis  of  apportionment,  and  as  the  statute 
did  not  provide  for  apportionment  it  was  invalid.  The  de- 
cision was,  not  that  it  was  beyond  the  power  of  Congress  to 
impose  a  tax  upon  incomes,  but  that  such  a  tax  must  be  dis- 
tributed by  apportionment  among  the  states,  and  not  deter- 
mined simply  on  the  plan  of  uniformity  throughout  the  United 
States. 


CHAPTER   XIII. 
FINANCIAL   POWERS   OTHER   THAN   TAXATION. 

80.    References. 

J.Story,  Constitution,  §§  1054,  1055,  1116-1121,  1357-1372  ;  T.  M. 
Cooley,  Constitutional  Law  (3d  ed.),  64,  90-93 ;  H.  C.  Black,  Con- 
stitutional  Law  (2d  ed.),  183-185,  306,  307;  J.  R.  Tucker,  Constitution^ 
508-516,  823-827  ;  J.  I.  C.  Hare,  Constitutional  Law,  198-205  ;  The  Federal- 
ist, No.  44;  J.  B.  Thayer,  Cases  oti  Constitutional  Law,  2 197-2 199  ;  A.  B. 
Hart,  Actual  Government  (Amer.  Citizen  Series),  §  214  ;  Craig  v.  State  of 
Missouri  {i?>2P,  4  Peters,  410;  Thayer's  Cases,  2199;  Marshall's  Deci- 
sions, Dillon's  ed.,  61 7)  ;  Briscoe  v.  Bank  of  Kentucky  (1837,  1 1  Peters,  257  ; 
Thayer's  Cases,  2207 ;  McClain's  Cases,  459) ;  Veazie  Bank  v,  Fenno 
(1869,  8  Wallace,  533;  McClain's  Cases,  222  ;  Thayer's  Cases,  1334); 
Legal  Tender  Case  (1884,  no  U.  S.  421 ;  McClain's  Cases,  442 ;  Thayer's 
Cases,  2255);  Hepburn  v.  Griswold  ( 1870,  8  Wallace,  603 ;  Thayer's  Cases, 
2222)  ;  Legal  Tender  Cases  {1872,  12  Wallace,  457  ;  Thayer's  Cases, 
2237,  and  notes,  2267-2273)  ;  Trebilcock  v.  Wilson  (1871,  12  Wallace, 
687  ;  McClain's  Cases,  454)  ;  Bronsoti  v.  Rhodes  {1868,  7  Wallace,  229; 
Thayer's  Cases,  2215) ;  Lanev.  Oregon  (1868,  7  Wallace,  71  ;  McClain's 
Cases,  40). 

81.    Financial  Powers  of  States. 

It  is  within  the  general  scope  of  legislative  power  to  pro- 
vide for  the  borrowing  of  money  for  the  public  use,  which  is 
usually  done  either  by  the  issuance  of  bonds  bearing  interest, 
which  may  be  sold  for  money,  or  by  issuing  warrants,  treasury 
notes,  or  other  evidences  of  indebtedness  which  may  be  used 
as  money  or  by  way  of  substitutes  for  money.  Warrants  are 
mere  evidences  of  debt  and  are  not  intended  for  circulation, 
so  that  they  need  not  be  further  considered.  Treasury  notes, 
or  like  instruments  in  the  form  of  due-bills,  by  which  the 
government  promises  to  pay  the  amount  specified  on  the  face 
of  the  bill  or  note,  are  usually  intended,  however,  to  pass  from 
hand  to  hand  as  currency  and  to  constitute  a  part  of  the  cir- 

143 


144  Financial  Powers.  [§  8i 

culating  medium  of  the  country.  The  states  may  exercise  the 
power  of  borrowing  money  in  any  of  these  ways  except  as 
forbidden  by  the  provisions  of  the  federal  constitution.  There 
is  nothing  in  the  constitution  to  prevent  their  borrowing  money 
by  means  of  the  sale  of  bonds,  nor  to  prohibit  them  from  issu- 
ing warrants  as  mere  evidences  of  indebtedness ;  but  they  are 
specifically  prohibited  from  emitting  bills  of  credit  (Art.  I, 
§  lo,  ^  i),  and  this  prohibition  puts  it  beyond  the  power  of 
the  state  to  issue  due-bills,  or  paper  of  any  kind  intended  to 
pass  from  hand  to  hand  as  or  as  a  substitute  for  money ;  that 
is,  a  state  cannot,  even  for  the  purpose  of  borrowing  money, 
exercise  the  sovereign  power  of  emitting  paper  currency  {Craig 
V.  Missouri).  But  this  prohibition  does  not  interfere  with 
the  power  of  a  state  to  authorize  banks  to  issue  bank  notes 
in  the  form  of  due-bills  or  of  similar  character,  intended  to 
pass  as  currency  on  the  faith  and  credit  of  the  bank  itself, 
and  not  of  the  state  which  authorizes  their  issuance. 

The  business  of  banking  is  a  form  of  business  which  the 
state  may  regulate  and  it  may  authorize  the  creation  of  cor- 
porations to  engage  in  such  business.  In  the  case  of  Briscoe 
V.  Bank  of  Kentucky  it  was  held  that  even  though  the  state 
itself  is  a  stockholder  in  the  bank,  the  notes  issued  by  the 
bank  and  in  its  own  name  are  not  bills  of  credit  of  the  state. 
It  is  entirely  possible,  therefore,  and  it  was  at  one  time  the 
practice  for  states  to  charter  banks  with  authority  to  issue 
currency  under  regulations  and  restrictions  imposed  by  law. 
Such  currency  might  properly  be  called  state  currency  as  dis- 
tinguished from  national  currency,  being  issued  under  author- 
ity of  the  state.  However,  as  will  appear  in  the  next  section. 
Congress  has  also  authority  to  provide  currency  for  the  country, 
and,  in  the  exercise  of  this  sovereign  power  it  may  impose 
restrictions  on  the  exercise  of  a  like  power  on  the  part  of  the 
states.  In  the  exercise  of  this  sovereign  power.  Congress 
has  imposed  a  tax  of  ten  per  cent  on  the  currency  issued 
under  the  authority  of  a  state,  and  this  tax  is,  as  it  was  intended 
to  be,  so  severe  a  burden  on  the  emitting  of  bills  by  banks 
chartered  under  state  authority  that  state  bank  currency  has 


§  82]  States.  145 

wholly  gone  out  of  use  and  been  supplanted  by  currency  pro- 
vided for  by  the  federal  government.  Such  a  tax  has  been 
held  valid  in  Veazie  Bank  v.  Fenno. 

By  the  section  of  the  federal  constitution  last  above  referred 
to,  states  are  also  prohibited  from  coining  money  or  making 
anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts ;  and  it  results,  that  neither  coin  nor  paper  money  can 
be  emitted  by  a  state,  and  that  practically  the  entire  power 
of  providing  for  and  regulating  the  making  and  issuance  of 
money  rests  with  the  federal  government. 

82.    Pcwer  of  Federal  Government  as  to  Money. 

Congress  is  expressly  given  by  the  constitution  power  to 
borrow  money  on  the  credit  of  the  United  States  (Art.  I,  §  8, 
f  2),  and  this  it  may  do  and  frequently  has  done  by  the  sale 
of  bonds  bearing  interest,  and  also  by  emitting  due-bills  or 
promises  to  pay  in  the  form  of  treasury  notes,  or  so-called 
"greenbacks,"  intended  for  use  as  a  circulating  medium. 
There  is  no  express  provision  in  the  constitution  as  there  was 
in  the  Articles  of  Confederation  for  emitting  bills  of  credit, 
but  in  the  practical  construction  of  the  constitution  it  has 
been  thought  that  the  power  to  emit  bills  of  credit  is  incident 
to  the  power  to  borrow  money  and  involves  the  general  power 
:o  regulate  the  currency  of  the  country. 

Congress  has  the  implied  power,  which  it  exercised  during 
two  considerable  periods  of  its  early  history,  to  charter  a 
United  States  Bank  with  branches  in  order  to  facilitate  the 
financial  operations  of  the  government,  but  under  its  general 
powers  to  regulate  the  currency  and  to  borrow  money,  it  has 
more  recently  provided  for  the  incorporation  of  a  group  of 
national  banks  with  authority  to  issue  currency.  This  currency 
consists  of  the  so-called  national  bank  notes,  which  are  promises 
of  the  banks  to  pay,  guaranteed  by  the  government  itself;  so 
that,  in  effect,  this  currency  rests  for  its  security  on  the  credit 
of  the  government  as  well  as  upon  the  financial  responsibility 
of  the  banks  issuing  it.  The  government  secures  itself,  as 
against  its  guaranty  of  this  paper,  by  requiring  the  banks  to 


146  Financial  Powers.  [§82 

deposit  with  the  federal  government  bonds  which  the  banks 
are  required  to  buy  for  that  purpose,  so  that  the  national  bank- 
ing scheme  was  originally  a  means  by  which  the  United  States 
borrowed  money,  although  that  is  not  now  the  ultimate  object 
of  conducting  the  national  banking  system. 

One  means,  and  a  very  important  one,  of  securing  the  cir- 
culation of  the  paper  money,  or  promises  to  pay,  of  the  United 
States,  was  to  make  such  promises  to  pay  a  legal  tender  for 
the  payment  of  all  public  and  private  debts.  In  the  absence 
of  some  such  statutory  provision,  only  coin  would  be  a  legal 
tender.  When  "greenbacks"  were  first  provided  for  in  1862, 
it  was  a  serious  question  whether  Congress  had  any  authority 
to  make  such  paper  money  a  legal  tender,  but  it  was  finally 
decided  in  the  Legal  Tender  Cases  (187 1)  that  the  power  to 
make  it  a  legal  tender  was  incident  to  the  power  to  emit  it, 
that  is,  incident  to  the  express  power  to  borrow  money  and 
the  implied  power  to  issue  bills  of  credit.  As  stated  in  the 
preceding  section,  the  states  are  prohibited  from  making  any- 
thing but  gold  and  silver  coin  a  legal  tender,  but  there  is  no 
such  prohibition  with  reference  to  the  power  of  Congress,  and 
its  exercise  of  the  power  to  make  its  own  obligations  a  legal 
tender  in  the  payment  of  debts  is  now  generally  conceded. 
It  has  been  held,  however,  in  Lane  County  v.  Oregon,  that 
Congress  cannot  make  its  own  obligations  a  legal  tender  for 
the  payment  of  state  taxes,  for  the  power  to  tax  is  a  necessary 
power  of  the  states,  and  they  may  require  their  own  taxes  to  be 
paid  in  whatever  manner  they  see  fit.  Nor  can  Congress  make 
legal  tender  notes  receivable  in  payment  of  debts  which  by 
specific  contract  are  payable  in  coin  {Trebilcock  v.  Wilson  and 
Bronson  v.  Rhodes). 

Congress  has  also  the  constitutional  power  "  to  coin  money, 
regulate  the  value  thereof,  and  of  foreign  coin  "  (Art.  I,  §  8, 
^5).  In  the  exercise  of  this  power,  Congress  has  provided 
for  the  coining  of  various  metals  into  money  of  different  de- 
nominations, specifying  the  quantity  of  metal  for  each  coin. 
In  so  doing  the  federal  government  does  not  merely  indicate 
the  quantity  of  each  particular  metal  which  is  included  in  the 


§  82]  Money.  147 

coin  piece,  leaving  the  value  to  be  determined  by  the  current 
market  value  of  such  metal,  but  in  the  exercise  of  its  sovereign 
power,  it  determines  arbitrarily  the  money  value  of  the  coins 
issued,  and  by  the  fact  of  their  issuance,  makes  them  legal 
tender  for  their  coin  value  as  may  be  provided  by  statute,  with 
a  limitation  as  to  the  aggregate  amount  for  which  the  minor 
coins  may  be  used  as  a  legal  tender.  The  power  to  coin 
money  does  not,  however,  include  the  power  of  stamping  a 
merely  fictitious  value  on  any  material  which  may  be  selected 
for  the  purpose.  It  is  doubtful  whether  Congress  could,  in  the 
exercise  of  this  power,  stamp  a  piece  of  paper  with  the  words 
"five  dollars"  and  make  such  a  piece  of  paper  a  legal  tender 
for  that  amount  of  money.  At  any  rate  it  has  never  attempted 
to  do  so,  and  has  limited  the  issuance  of  legal  tender  paper 
money  to  obligations  of  the  United  States  to  pay  money. 

As  pointed  out  in  the  chapter  relating  to  taxation  (see  above, 
§73),  the  states  cannot  tax  the  bonds  or  currency  issued  by 
or  under  the  authority  of  the  federal  government  except  as 
Congress  may  authorize,  and,  conversely,  the  federal  govern- 
ment cannot  tax  the  bonds  or  warrants  issued  by  or  under 
authority  of  a  state  government,  because  for  either  to  do  so 
would  be  impossible  without  interfering  with  the  proper  exer- 
cise of  power  on  the  part  of  the  other. 


CHAPTER  XIV.     • 

REGULATION    OF   COMMERCE. 

83.    References. 

In  General:  J.  Story,  Constitution,  §§  259-263,  1054-1101;  T.  M. 
Cooley,  Constitutional  Limitations,  **  584-594 ;  T.  M.  Cooley,  Constitu- 
tional Law,  ch.  iv,  §  2  ;  H.  C.  Black,  Constitutional  Law  (2d  ed.),  pp.  186- 
207,  368-371  ;  J.  I.  C.  Hare,  Constitutional  Law,  chs.  xxxi-xxxiii ;  J.  R. 
Tucker,  Constitution,  §§  250-268 ;  J.  N.  Pomeroy,  Constitutional  Law, 
§§321-384;  The  Federalist, '^os.  T,  ii,  12,  22,  42;  Prentice  and  Egan, 
Commerce  Clause  of  the  Federal  Constitution;  A.  B.  Hart,  Actual  Gov- 
ernment (Amer.  Citizen  Series),  chs.  xxiv,  xxvii;  J.  B.  Thayer,  Cases  on 
Constitutional  Law,  pp.  2090,  2091 ;  John  Fiske,  Critical  Period  in  Amer- 
ican History,  ch.  iv. 

Extent  of  Federal  Power:  Gibbons  v.  Ogden  (1824,9  Wheaton, 
i;  6  Curtis'  Decisions,  i;  McClain's  Cases,  235;  Thayer's  Cases,  1799, 
and  notes,  1818-1823  ;  Marshall's  Decisions,  Dillon's  ed.,  421)  ;  Hender- 
son V.  Mayor  of  New  York  (1875,  92  U.  S.  259;  McClain's  Cases,  244; 
Thayer's  Cases,  1961);  The  Passenger  Cases  (1848,7  Howard,  283;  17 
Curtis'  Decisions,  122;  Thayer's  Cases,  1865);  Pensacola  Telegraph  Co. 
V.  Western  Union  Telegraph  Co.  (1877,  96  U.  S.  i  ;  McClain's  Cases, 
252  ;  Thayer's  Cases,  1985)  ;  Lord  v.  Steamship  Co.  (1880,  102  U.  S.  541 ; 
McClain's  Cases,  256)  ;  The  Daniel  Ball  (1870,  10  Wallace,  557  ; 
McClain's  Cases,  260;  Thayer's  Cases,  1930);  Kiddy.  Pearson  (1883, 
128  U.  S.  i)  ;  United  States  v.  E.  C.  Knight  Co.  (1895,  156  U.  S.  i  ; 
McClain's  Cases,  263;  Thayer's  Cases,  2185)  ;  Northern  Securities  Co.  v. 
United  States  (1904,  193  U.  S.  197  ;  McClain's  Cases,  2d  ed.,  1081) ;  In  re 
Debs  (1895,  ^58  U.  S.  164);  The  Lottery  Case  (1903,  188  U.  S.  321  ; 
McClain's  Cases,  2d  ed.  1071 ;  United  States  v.  Standard  Oil  Co.  (1909, 
173  Fed.  Rep.  177). 

Validity  OF  State  Regulations:  Willsonx.  Blackbird  Creek  Marsh 
Co.  (1829,  2  Peters,  245;  8  Curtis'  Decisions,  105;  McClain's  Cases, 
273;  Thayer's  Cases,  1837);  Cooley  v.  Board  of  Wardens  (1851,  12 
Howard,  299;  19  Curtis'  Decisions,  143;  McClain's  Cases,  275;  Thayer's 
Cases,  2191)  ;  Pennsylvania  v.  Wheeling  <5r»  Belmont  Bridge  Co.  (1855,  18 
Howard,  421 ;  McClain's  Cases,  282 ;  Thayer's  Cases,  i88g)  ;  Escanaba 
Co.  V.  Chicago  (1882,  107  U.  S.  678;  McClain's  Cases,  285;  Thayer's 
Cases,  2002);  Harmanv.  Chicago  (1893,  ^47  U.  S.  396;  McClain's  Cases, 
290;  Thayer's  Cases,  2011);  United  States  y.  Rio  Grande  Dam  6^  Irri- 
gation Co.  (1899,  174  U.  S.  690;  McClain's  Cases,  297);  Katisas  v. 
Colorado  (1907,  206  U.  S.  46). 

148 


§  83]  References.  149 

State  Taxation  of  Commerce:  Brown  v.  Maryland  (1827,  12 
Wheaton,  419;  7  Curtis'  Decisions,  262  ;  McClain's  Cases,  303;  Thayer's 
Cases,  1826) ;  Weltoii  v.  Missouri  (1S75,  9'  U.  S.  275  ;  McClain's  Cases, 
313;  Tliayer's  Cases,  1957);  Robbins  v .  Shelby  Comity  Taxing  District 
(1887,  120  U.  S.  489;  McClain's  Cases,  317  ;  Thayer's  Cases,  2056) ;  Fick- 
len  V.  Shelby  County  Taxing  District  (1892,  145  U.  S.  I ;  McClain's  Cases, 
323;  Thayer's  Cases,  2143);  Emert  \.  Missouri  (1895,  156  U.  S.  296; 
McClain's  Cases,  324)  ;  Crutcher  v.  Kentucky  (1891,  141  U.  S.  47  ;  Mc- 
Clain's Cases,  328  ;  Thayer's  Cases,  2135)  ;  Brown  v.  Huston  (1885,  1 14 
U.  S.  622 ;  McClain's  Cases,  333 ;  Thayer's  Cases,  2022)  ;  Telegraph  Co.  v. 
Texas  (1881,  105  U.  S.  460;  McClain's  Cases,  338);  Philadelphia  &" 
Southern  Steamship  Co.  v.  Pennsylvania  (1887,  122  U.  S.  326;  McClain's 
Cases,  342 ;  Thayer's  Cases,  2063)  ;  Adams  Express  Co.  v.  Ohio  State 
Auditor  (1897,  165  U.  S.  194;  McClain's  Cases,  349);  Allen  v.  Pullman 
Palace  Car  Co.  (1903,  191  U.  S.  171;  McClain's  Cases,  2d  ed.,  1114); 
Western  Union  Tel.  Co.  v.  Kansas  (1909,  30  Sup.  Ct.  Rep.  190). 

State  Police  Power  as  to  Commerce  :  Railroad  Co.  v.  Fuller 
(1873,  17  Wallace,  560;  McClain's  Cases,  355) ;  Wabash,  etc.,  R.  R.  Co.  v. 
Illinois  (1886,  118  U.  S.  557  ;  Thayer's  Cases.  2045)  \  Lake  Shore  &'  Michi- 
gan Soicthern  Railway  Co.  v.  Ohio  {1899,  173  U.  S.  285;  McClain's 
Cases,  357);  Railroad  Co.  v.  Husen  (1877,  95  U.  S.  465;  McClain's 
Cases,  367  ;  Thayer's  Cases,  753)  ;  Kimmish  v.  Ball  (1889,  129  U.  S.  217  ; 
McClain's  Cases,  371) ;  Britnmerv.  Rebman  (1891, 138  U.  S.  78;  McClain's 
Cases,  373) ;  Minnesota  v.  Barber  (1890,  136  U.  S.  313;  Thayer's  Cases, 
211 2)  ;  Morgan's  Steamship  Co.  v.  Lonisiafta  Board  of  Health  (1886,  118 
U.  S.  455  ;  McClain's  Cases,  376  ;  Thayer's  Cases,  2040);  Bowman  v. 
Railway  Co.  (1888,  125  U.  S.  465  ;  Thayer's  Cases,  2080) ;  Leisy  \.  Hardin 
{1890,  135  U.  S.  100;  McClain's  Cases,  378;  Thayer's  Cases,  2104); 
Austin  V.  Tennessee  (1900,  179  U.  S.  343;  /«  re  Rahrer  (1891,  140  U.  S. 
545;  Thayer's  Cases,  2123);  Rhodes  v.  Iowa  (1898,  170  U.  S.  414; 
McClain's  Cases,  390)  ;  Schollenberger  v.  Pennsylvania  (1898,  171  U.  S.  i  ; 
McClain's  Cases,  395);  Powell  v.  Pennsylvania  (1887,  127  U.  S.  678; 
Thayer's  Cases,  537)  ;  Capital  City  Dairy  Co.  v.  Ohio  (1902, 183  U.  6".  238). 

Federal  or  State  Taxes  on  Exports,  Imports,  and  Tonnagi.  : 
Pace  V.  Burgess  (1875,  9^  U.  S.  372;  McClain's  Cases,  402)  ;  Almy  v. 
California  (i860,  24  Howard,  169;  McClain's  Cases,  404);  Woodruff  v. 
Farham  (1868,  8  Wallace,  123;  Thayer's  Cases,  1922) ;  Turner  v.  Mary- 
land (1882,  107  U.  S.  38;  McClain's  Cases,  406  ;  Thayer's  Cases,  2120) ; 
Inman  Steamship  Co.  v.  Tinker  (1876,  94  U.  S.  238;  McClain's  Cases, 
409)  ;  Packet  Company  v.  Keokuk  {1877,  95  U.  S.  80;  McClain's  Cases, 
411);  Transportation  Co.  v.  Wheeling  (1878,  99  U.  S.  273;  McClain's 
Cases,  416). 

Commerce  with  Indian  Tribes:  United  States  v.  Holliday  (1865, 
3  Wallace,  407;  McClain's  Cases,  270;  Thayer's  Cases,  1909)  ;  Cherokee 
Nation  v.  Kansas  Railway  Co.  (1890,  135  U.  S.  641 ;  McClain's  Cases, 
1063). 


150  Regulation  of  Commerce.  [§85 


84.    State  Power  over  Commerce  in  General. 

The  general  power  to  regulate  commerce  is  in  strict  analysis 
a  part  of  the  police  power,  and,  as  has  already  been  indicated 
in  the  discussion  of  that  subject  (see  above,  §  48),  the  states 
may  regulate  rates  charged  by  common  carriers  for  the  trans- 
portation of  persons  or  goods.  In  some  states  boards  of 
commissioners  have  been  especially  created  to  exercise  a 
particular  supervision  over  railroad,  express,  telegraph,  and 
other  kinds  of  corporations  engaged  in  business  affecting  com- 
merce. Indeed,  regulations  as  to  the  use  of  highways,  the 
construction  of  bridges,  the  navigation  of  public  waters,  and 
the  Hke,  are  instances  of  poUce  regulation  principally  affecting 
commerce.  Were  it  not  for  the  limitations  upon  state  power, 
involved  in  the  provisions  in  the  clause  of  the  federal  constitu- 
tion to  be  hereafter  discussed,  which,  gives  Congress  certain 
powers  as  to  the  regulation  of  commerce,  there  would  be  no 
necessity  for  any  separate  or  particular  treatment  of  this  sub- 
ject, but  as  the  powers  of  the  state  are  greatly  restricted  in 
this  respect  by  that  provision  it  is  necessary  that  the  division 
of  powers  between  the  federal  government  and  the  govern- 
ments of  the  states  be  considered  in  some  detail. 

85.  Necessity  for  Federal  Regulation  of  Commerce. 

Under  the  Articles  of  Confederation,  Congress  had  no  power 
to  levy  taxes  or  to  regulate  commerce  ;  and,  as  a  consequence, 
it  could  not  adopt  navigation  laws,  impose  duties  on  imports, 
or  prevent  conflicting  or  retaliatory  enactments  by  the  legisla- 
tures of  the  different  states  with  respect  to  trade  between  the 
states  and  foreign  countries,  or  other  states  of  the  Union. 
Each  state  could,  for  itself,  levy  duties  on  exports  or  imports, 
and  make  such  commercial  regulations  as  it  saw  fit.  This 
situation  was  inconsistent  with  any  uniform  or  beneficial  reg- 
ulation of  commercial  intercourse  with  foreign  countries,  and 
because  of  division  and  animosity  as  between  the  people  of 
the  several  states,  tended  to  a  disruption  of  the  Confedera- 
tion.    So  serious  was  the   condition    that    the   legislature  of 


§  86]  State  and  Federal.  151 

Virginia,  in  1786,  passed  a  resolution  for  the  appointment 
of  commissioners  from  that  state  to  confer  with  like  com- 
missioners from  other  states  with  reference  to  the  adoption  of 
some  more  efficient  and  satisfactory  system  of  commercial 
regulations.  These  commissioners  were  asked  to  meet  at 
Annapolis,  but  at  the  time  fixed  there  were  commissioners 
present  from  only  five  states,  and  the  so-called  Annapolis  con- 
vention was,  therefore,  unable  to  take  any  efficient  action ; 
but  resolutions  were  adopted  recommending  action  by  Con- 
gress with  a  view  of  securing  amendments  or  additions  to  the 
Articles  of  Confederation,  and  this  convention  was  the  first 
formal  step  towards  securing  for  the  Union  a  better  organ- 
ization and  a  more  practical  constitutional  system.  When 
the  constitutional  convention,  subsequently  called,  met  to 
consider  the  revision  of  the  Articles  of  Confederation,  or  the 
adoption  of  some  better  plan  of  federal  government,  one 
of  the  first  objects  which  the  members  had  in  mind  was  a 
uniform  system  for  the  regulation  of  commerce;  and  the 
system  adopted  involved  the  grant  to  Congress  of  the  power 
to  impose  duties  on  imports  as  a  means  of  raising  revenue, 
and  the  further  power  to  regulate  foreign  and  interstate  com- 
merce. The  provision  as  to  duties  on  imports  has  already 
been  discussed  under  the  chapter  relating  to  taxation.  The 
subject  of  regulation  of  commerce,  as  involving  the  exercise  of 
that  power  by  Congress  and  the  corresponding  limitations 
upon  the  power  of  the  states,  is  for  this  chapter. 

86.  Provisions  of  the  Federal  Constitution  on  Commerce. 

The  principal  commerce  clause  of  the  federal  constitution, 
(Art.  I,  §  8,  ^  3),  is  as  follows  :  The  Congress  shall  have  power 
"to  regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes."  (i)  The 
necessity  of  such  control  with  reference  to  foreign  commerce 
is  manifold  and  self-evident.  It  is  essential  in  determining  the 
relations  of  the  general  government  to  foreign  countries,  and 
in  exercising  supervision  over  navigation  by  vessels  carrying 
the  flag  of  the  United   States  on  the  high  seas  and  other 


152  Regulation  of  Commerce.  [§  87 

public  waters.  (2)  The  necessity  for  federal  regulation  of 
interstate  commerce  arises  from  the  fact  that  without  such 
regulation  freedom  of  commercial  intercourse  between  resi- 
dents of  the  different  states  on  an  equal  basis  would  be 
impossible.  (3)  Commerce  with  the  Indian  tribes  was  put 
under  the  control  of  Congress,  because  those  tribes  were 
recognized  as  to  some  extent  independent  and  self-governing 
bodies,  existing  within  the  limits  of  the  United  States,  over 
which  the  national  government  asserted  a  form  of  protection, 
although  the  members  of  such  tribes  were  not,  as  individuals, 
subjects  of  the  United  States.  As  to  any  forms  of  commerce 
not  coming  within  one  of  these  three  classifications,  the  states 
are  allowed  to  retain  the  power  of  control  and  regulation  as 
effectually  as  though  independent  of  each  other  and  not  subject 
to  federal  authority. 

87.   Concurrent  State  PoTver  over  Commerce. 

Even  as  to  commerce  belonging  to  any  of  the  three  classes 
specified  by  the  federal  constitution,  the  power  of  state  regu- 
lation is  not  necessarily  denied.  It  is  to  be  noticed  that  Con- 
gress is  not  expressly  given  the  exclusive  power  to  regulate,  and 
while  the  power  of  Congress  is  necessarily  superior  to  that  of 
the  states,  so  that  any  regulations  which  Congress  may  adopt 
will  supersede  state  laws  on  the  same  subject,  it  does  not  fol- 
low that  state  legislation  affecting  the  three  forms  of  commerce 
enumerated  and  not  in  conflict  with  any  laws  of  Congress  on 
the  same  subject  is  necessarily  invalid.  Thus  harbor  regula- 
tions, or  rules  as  to  the  employment  of  pilots,  may  affect  foreign 
or  interstate  commerce,  but  they  are  not  on  that  account  in- 
effectual if  there  are  no  statutes  of  Congress  with  which  they 
are  in  conflict.  Again,  the  erection  of  bridges  over  navigable 
streams  within  state  limits,  or  the  construction  of  dams  in  such 
streams,  can  be  authorized  by  the  state,  although  foreign  or 
interstate  commerce  is  thereby,  to  some  extent,  interrupted. 
There  are  many  local  regulations  essential  for  the  control  of 
commerce  under  peculiar  circumstances,  which  cannot  very 
■well  be  provided  by  general  law,   and  so  far  as  the  state  regu- 


§  88]  Federal  and  Concurrent.  153 

lations  do  not  interfere  with  the  general  law  on  the  subject  they 
are  regarded  as  proper. 

The  fact  that  state  regulations  adopted  in  the  exercise  of 
the  general  police  power  may  incidentally  affect  foreign  and  in- 
terstate commerce  does  not  render  such  state  regulations  ne- 
cessarily invalid.  If  they  are  not  unreasonable,  nor  calculated 
to  effect  a  discrimination,  and  do  not  in  substance  amount  to 
general  regulations  of  such  commerce  as  is  placed  within  the 
control  of  Congress,  they  will  be  upheld.  For  instance,  a  state 
may  require  locomotive  engineers  to  procure  a  license,  although 
they  are  to  act  for  railroads  engaged  in  interstate  as  well  as 
internal  commerce.  In  the  absence  of  any  legislation  by  Con- 
gress, this  principle  would  also  apply  to  engineers  on  vessels 
navigating  the  public  waters  within  the  state,  and  also  to  the 
inspection  of  such  vessels,  but  if  there  is  congressional  legisla- 
tion on  this  subject,  any  state  legislation  is  thereby  superseded. 
The  states  can  also,  without  doubt,  prohibit  the  sale  of  goods 
dangerous  to  the  public  health  or  morals,  even  though  brought 
from  another  state  or  from  a  foreign  country.  As  the  general 
police  power  is  left  to  the  states  and  is  not  vested  in  Congress, 
it  is  evidently  necessary  that  the  states  shall  exercise  it,  not 
only  with  reference  to  goods  produced  in  the  state,  but  also  as 
to  goods  brought  into  the  state  from  without. 

88.    "What  is  a  Regulation  of  Commerce. 

Evidently  a  careful  distinction  must  be  made  between  state 
provisions  which  incidentally  affect  commerce  and  those  which 
amount  to  a  regulation  of  commerce,  and  this  distinction  de- 
pends on  the  legal  definition  of  commerce.  As  applied  in 
determining  whether  a  particular  act  or  transaction  involves 
foreign  or  interstate  commerce  which  is  within  the  control 
of  Congress,  or  internal  commerce  which  remains  within  the 
control  of  the  states,  the  term  has  been  held  to  cover  the 
transportation  of  goods,  including  the  bringing  of  goods  into 
the  state  for  sale,  the  transportation  of  persons  into  or  from 
the  state,  the  conveyance  of  messages  by  telegraph  between 
persons  in  the  state  and  those  in  another  state  or  in  a  foreign 


1 54  Regulation  of  Commerce.  [§  89 

country,  and,  in  general,  all  forms  of  personal  and  business 
intercourse  over  or  across  state  lines.  But  the  making  of 
contracts  is  not  commerce  in  this  sense. 

Foreign  and  interstate  commerce  is  not  limited  to  the  mere 
transportation  of  goods,  persons,  or  intelligence  across  the 
state  lines.  The  whole  transaction  from  the  beginning  to  the 
end  is  one  continuous  act  of  commerce.  If  goods  are  shipped 
from  a  point  in  one  state  to  a  point  in  another  state  or  in  a 
foreign  country ;  or  conversely,  if  goods  are  shipped  from  a 
point  in  another  state  or  in  a  foreign,  country  to  a  point  within 
the  state,  the  entire  transaction  is  interstate  or  foreign  com- 
merce, and  state  regulations  are  no  more  applicable  to  the 
portion  of  the  transaction  which  takes  place  within  the  state 
than  to  that  which  is  outside  of  the  state,  or  which  involves  the 
mere  passing  of  the  state  line.  Thus  although  a  navigable 
river  or  lake  is  entirely  within  the  state  limits,  nevertheless  nav- 
igation on  such  river  or  lake,  so  far  as  it  involves  the  transporta- 
tion of  goods  along  such  channel  of  communication,  is  interstate 
or  foreign  commerce  so  far  as  the  goods  are  brought  from 
without  the  state  to  a  point  of  destination  in  the  state,  or  taken 
from  a  point  within  the  state  to  a  point  without  the  state.  The 
same  principle  is  applied  to  transportation  over  railroad  lines, 
even  though  they  are  operated  exclusively  within  the  state,  if 
they  constitute  a  portion  of  a  line  of  transportation  for  goods 
brought  into  or  taken  out  of  the  state.  The  same  principles 
apply  to  transportation  of  goods  through  the  state  between 
points  in  other  states.  Illustrations  of  the  application  of  these 
principles  will  be  found  in  subsequent  sections  of  this  chapter. 

89.    Freedom  of  Commercial  Intercourse  Protected. 

As  has  already  been  said,  the  power  of  Congress  to  regulate 
foreign  and  interstate  commerce  is  not  in  terms  exclusive,  nor 
is  it  construed  as  excluding  state  regulation  which  incidentally 
affects  such  commerce,  or  even  directly  affects  it  for  local  pur- 
poses, so  far  as  no  congressional  legislation  exists.  But  the 
very  purpose  of  the  commercial  clause  in  the  federal  consti- 
tution was  to  exclude  discriminating  restrictions  and  unneces- 


§  89]  Intercourse  Protected.  155 

sary  interference  on  the  part  of  the  states,  and  it  is  to  be 
presumed,  therefore,  that  so  far  as  these  kinds  of  commerce 
are  to  be  subjected  to  general  regulations  affecting  them,  not 
locally  but  throughout  their  entire  extent,  such  regulations 
must  come  from  Congress  and  not  from  the  states.  It  must 
be  assumed  that,  so  far  as  general  regulations  are  concerned, 
it  is  the  intention  of  Congress  that  commerce  shall  be  unre- 
stricted save  as  congressional  relations  may  have  been  adopted. 
Thus  it  has  been  held  in  Welton  v.  Missouri  that  a  state  can- 
not require  a  license  for  the  selling  within  the  state  of  goods 
brought  into  the  state  from  another  state  or  from  a  foreign 
country.  A  so-called  license  tax  on  drummers  or  com- 
mercial agents  is  therefore  invalid  as  applied  to  such  agents 
soliciting  orders  of  goods  from  without  the  state  (see  Rob- 
bins  V.  Shelby  County  Taxing  District);  for  freedom  of 
intercourse  involves  the  right  of  persons  living  in  other 
states  or  in  foreign  countries  to  come  into  the  state  for 
the  purpose  of  selling  their  goods  save  so  far  as  restric- 
tions may  have  been  interposed  by  Congress,  as,  for  instance, 
by  the  requirement  for  payment  of  import  duties. 

On  the  other  hand,  the  control  of  persons  carrying  on  busi- 
ness within  the  state,  not  necessarily  involving  the  bringing 
of  goods  into  the  state  for  sale,  is  a  matter  for  state  regula- 
tion, and  any  business  carried  on  within  the  state  which  is  a 
proper  subject  for  state  taxation  or  police  regulation  is  under 
state  control.  The  state  may  impose  a  license  tax  upon  tran- 
sient merchants,  or  authorize  cities  to  do  so,  without  inter- 
fering with  freedom  of  commerce,  even  though  such  a  transient 
merchant  may  be  selling  goods  brought  from  another  state  ; 
and  it  has  been  held  in  Emert  v.  Missouri  that  the  business 
of  peddling,  being  one  which  is  subject  to  regulation  in  the 
exercise  of  the  police  power,  may  be  restricted  by  state  statute, 
although  the  peddler  is  actually  engaged  in  the  sale  of  goods 
brought  from  without  the  state.  In  this  connection,  it  is 
necessary,  however,  to  bear  in  mind  the  provision  of  the  fed- 
eral constitution  that  "  The  citizens  of  each  state  shall  be  enti- 
tled to  all  privileges  and  immunities  of  citizens  in  the  several 


156  Regulation  of  Commerce.  [§90 

states"  (Art.  IV,  §  2,  %  i),  and  therefore  any  state  law  or 
municipal  regulation  based  on  a  discrimination  between  citi- 
zens of  the  state  and  citizens  of  other  states,  which  excludes 
citizens  of  other  states  from  all  the  privileges  in  this  respect 
accorded  to  citizens  of  the  state,  and  which  bears  harder  on 
citizens  of  another  state  than  the  state's  own  citizens,  are 
invalid.  (See  below,  §  190.)  Consequently  any  state  legisla- 
tion which  only  incidentally  affects  foreign  or  interstate  com- 
merce is  invalid  if  it  imposes  a  burden  on  such  commerce  as 
compared  with  commerce  which  is  wholly  within  the  state. 

90.    State  Restrictions  Invalid;  Further  Illustrations. 

The  principles  stated  in  the  preceding  sections  of  this  chap- 
ter can  be  rendered  more  intelligible  by  a  brief  statement  of 
some  of  the  important  questions  which  have  been  decided 
under  them.  Soon  after  the  application  of  steam  power  to  the 
purpose  of  propelling  vessels,  the  state  of  New  York  granted 
an  exclusive  franchise  to  certain  persons  to  operate  steam  ves- 
sels upon  waters  within  the  limits  of  the  state  ;  but  the  Supreme 
Court  of  the  United  States  in  Gibbons  v.  Ogden  held  this  exclu- 
sive privilege  to  be  invalid  so  far  as  it  operated  to  exclude  from 
the  Hudson  River  steam  vessels  coming  from  another  state; 
for  although  the  portion  of  the  Hudson  River  on  which  the  ves- 
sel was  navigated  is  exclusively  within  the  limits  of  New  York, 
the  state  statute  amounted  to  a  regulation  of  navigation  on  that 
river,  and  as  navigation  is  included  within  the  meaning  of  the 
term  commerce,  and  as,  therefore,  vessels  coming  into  the  waters 
of  New  York  from  another  state  were  engaged  in  interstate  com- 
merce, the  restriction  which  the  state  of  New  York  had  attempted 
to  make  was  a  restriction  of  freedom  of  commercial  intercourse 
among  the  states.  Likewise  a  statute  of  New  York,  in  effect  re- 
quiring the  payment  by  steamship  companies  of  a  per  capita  tax 
upon  all  passengers  brought  into  the  state,  was  held  invalid  in 
Henderson  v.  Mayor  of  Ne7v  York,  because  transportation  of 
persons  as  well  as  of  goods  is  within  the  meaning  of  the  term  com- 
merce, and  the  state  passenger  tax  amounted  to  a  restriction  on 
foreign  commerce.    No  doubt  the  state  could  take  proper  meas- 


§  9o]  State  Restrictions  Invalid.  157 

ures  for  excluding  persons  affected  with  contagious  diseases,  or 
who  would  be  likely  to  become  objects  of  charity,  but  as  Congress 
has  enacted  immigration  laws  covering  the  whole  subject,  any 
state  regulation  of  that  character  would  no  doubt  now  be  in- 
valid, as  interfering  with  specific  regulations  by  Congress. 

In  the  proper  exercise  of  its  police  power,  the  state  may 
exclude  animals  having  diseases  likely  to  be  communicated  to 
other  animals,  or  meat  which  is  unwholesome,  but  such  police 
regulations  must  be  directly  calculated  to  subserve  purposes 
with  reference  to  which  the  state  can  legislate,  and  not  be  used 
as  a  cloak  for  regulation  of  foreign  and  interstate  commerce. 
Therefore  it  was  held  in  Railroad  Company  v.  Husen  that  a 
statute  excluding  from  a  state  all  cattle  brought  from  another 
state  which  may  have  been  subjected  to  the  so-called  Texas 
fever  was  unconstitutional,  because  it  operated  to  exclude  all 
the  cattle  from  a  certain  region  without  regard  to  whether  they 
had  actually  been  contaminated  with  that  disease.  So  in 
B?'im?ner  v.  Rebinaji  it  was  held  that  meat  inspection  statutes, 
which  required  that  all  animals  slaughtered  for  food  be 
inspected  while  alive  within  one  hundred  miles  of  the  place  of 
sale  and  within  a  limited  time  before  the  meat  was  offered  for 
sale,  were  unconstitutional  as,  in  practical  effect,  preventing 
the  sale  within  the  state  of  fresh  meat  from  animals  slaughtered 
in  another  state,  regardless  of  whether  such  meat  was  actually 
unwholesome  by  reason  of  diseased  condition  of  the  animals 
slaughtered  or  the  keeping  of  the  meat  for  an  improper  length 
of  time  after  slaughtering. 

In  the  exercise  of  its  police  power,  the  state  may  unquestion- 
ably regulate  or  prohibit  the  sale  of  intoxicating  liquors  or 
cigarettes,  but  as  liquors  and  tobacco  are  recognized  subjects 
of  commerce,  it  has  been  held  in  Bowman  v.  Railroad  Com- 
pany that  state  statutes  prohibiting  the  bringing  into  the  state 
of  such  articles  of  commerce  are  invalid.  The  regulation  of 
the  sale  of  such  goods  after  they  have  been  brought  into  the 
state  is  another  matter,  and  will  be  referred  to  in  the  next  sec- 
tion of  this  chapter.  The  state  may  regulate  rates  of  transpor- 
tation by  common  carriers,  but  state  statutes  regulating  such 


158  Regulation  of  Commerce.  [§91 

rates  have  been  held  in  JVabash,  etc.  R.  Co,  v.  Illinois  not  to 
be  applicable  to  the  transportation  of  goods  or  passengers  so 
far  as  such  transportation  is  a  part  of  interstate  or  foreign  com- 
merce. The  state  may,  however,  make  regulations  affecting 
railroads  engaged  in  interstate  or  foreign  commerce,  if  such 
regulations  do  not  amount  to  an  unreasonable  restriction  on 
such  commerce.  Thus  statutes  requiring  that  signals  be  given 
at  highway  crossings,  or  that  rates  of  freight  and  fare  be  posted 
for  information  of  the  public,  have  been  upheld.  (See  Rail- 
road Co\  V.  Fuller.) 

91.    Sale  of  Goods  brought  into  the  State. 

It  is  evident  that  commerce  would  not  be  substantially  free 
from  state  interference  if  the  state  could  impose  a  license  tax 
on  the  privilege  of  selling  such  goods  after  they  had  been 
brought  in,  for  such  a  tax  imposed  specifically  with  reference 
to  goods  which  are  the  subject  of  foreign  or  interstate  com- 
merce would  be  in  effect  a  restriction  upon  such  commerce. 
Accordingly  it  was  held  in  an  early  case  in  the  Supreme  Court 
of  the  United  States  {Brown  v.  Maryland),  that  a  license  tax 
on  the  privilege  of  selling  goods  which  had  been  imported, 
and  on  which  duties  had  been  paid  in  accordance  with  the 
provisions  of  the  federal  law  as  to  importation,  was  invalid, 
and  it  was  suggested  that  the  privilege  of  importing  secured 
under  the  law  of  the  United  States  involved  more  than  merely 
the  right  to  bring  into  the  state  for  use,  and  included  also  the 
right  to  sell  without  interference  of  state  law  so  long  as  the  goods 
had  not  become  mingled  with  the  general  property  within  the 
jurisdiction  of  the  state.  More  specifically  it  was  suggested 
that  the  importer  had  the  right  to  sell  imported  goods  in  the 
original  packages  in  which  they  had  been  brought  into  the 
state,  but  that  this  immunity  from  the  application  of  the  state 
law  did  not  extend  to  sales  other  than  in  the  original  packages 
or  to  sales  by  persons  who  had  procured  the  goods  in  the 
state  from  the  importer. 

Subsequently  in  Leisy  v.  Hardin  the  same  general  rule 
was  applied  to  goods  such  as  intoxicating  liquors  brought  into 


§  9i]  Goods  brought  into  State.  159 

the  state  from  another  state,  although  there  was  no  par- 
ticular congressional  regulation  as  to  such  matter  and  no 
duties  had  been  paid  to  the  United  States  for  the  privilege  of 
bringing  the  goods  into  the  state  from  another  state ;  for,  of 
course,  Congress  cannot  impose  duties  on  goods  taken  from 
one  state  into  another.  The  so-called  "  Original  Package  " 
rule,  therefore,  means  simply  that  in  the  absence  of  any  regu- 
lation by  Congress  the  state  cannot  tax  or  prohibit  sales  in 
the  original  package  by  the  person  who  has  brought  the  goods 
into  the  state  from  another  state  or  from  a  foreign  country, 
and  that  so  long  as  such  person  continues  to  hold  such  goods 
for  sale  in  the  original  package,  the  state  cannot  impose  re- 
strictions or  burdens  upon  such  sale. 

This  rule  was  the  subject  of  particular  discussion  in  connec- 
tion with  its  application  to  the  transportation  and  sale  of  in- 
toxicating liquors  in  states  where  prohibitory  liquor  laws  had 
been  adopted ;  and  the  conclusion  reached  that  state  liquor 
laws  did  not  apply  to  intoxicating  liquors  sold  in  the  original 
packages  by  the  person  bringing  them  into  the  state  was 
regarded  by  many  as  peculiarly  unfortunate,  because  it  opened 
the  way  for  the  constant  violation  of  the  policy  of  the  state 
laws  relating  to  the  regulation  of  the  liquor  traffic.  This  ob- 
jection has  been  obviated,  so  far  as  intoxicating  liquors  are 
concerned,  by  an  act  of  Congress,  known  as  the  "Wilson 
Act,"  passed  in  1890,  providing  that  after  intoxicating  liquors 
are  brought  into  any  state  they  shall  be  subject  to  the  regula- 
tions of  the  state  law  as  to  their  sale ;  and  since  the  passage 
of  that  act,  sales  in  original  packages  are  subject  to  the  same 
restrictions  as  other  sales  of  intoxicating  liquors,  for  in  the 
exercise  of  its  power  to  regulate  interstate  and  foreign  com- 
merce Congress  may  undoubtedly  subject  such  commerce  to 
state  regulation  so  far  as  it  may  see  fit  (/«  re  Rahrer). 
But  the  Wilson  Act  does  not  subject  to  state  control  the 
transportation  of  intoxicating  liquors  into  a  state;  it  re- 
lates only  to  their  sale  after  they  have  reached  their  des- 
tination in  the  state  {Rhodes  v.  Iowa).  The  "Original 
Package  "  rule  still  applies  to  sales  of  cigarettes,  oleomargarine, 


i6o  Regulation  of  Commerce.  [§92 

and  other  articles  which  are  subjects  of  general  commerce, 
but  which  come  within  the  scope  of  the  police  regulations  in 
the  various  states ;  it  does  not  apply,  however,  to  articles  such 
as  unwholesome  food,  infected  clothing,  devices  for  counterfeit- 
ing, and  like  articles  which  have  no  lawful  use  and  are  not 
properly  subjects  of  commerce.  As  to  such  articles,  the  power 
of  the  state  to  prohibit  transportation  and  sale  may  be  fully 
exercised  {Kimmish  v.  Ba/l). 

92.    State  Taxation  of  Commerce. 

The  general  power  of  the  state  to  tax  all  property  within 
its  jurisdiction  extends  to  property  which,  although  it  has 
been  brought  into  the  state  as  a  subject  of  foreign  or  inter- 
state commerce,  is  owned  in  the  state  or  is  otherwise  subject 
to  its  jurisdiction  for  taxation  purposes ;  but  the  state  cannot 
levy  taxes  on  property,  which  is  a  subject  of  interstate  or 
foreign  commerce,  that  is,  while  it  is  actually  being  trans- 
ported through  the  state  or  from  a  point  in  the  state  to  some 
point  in  another  state  or  a  foreign  country.  The  exemption 
of  such  property  from  taxation  commences  when  the  trans- 
portation commences  and  continues  so  long  as  the  transporta- 
tion continues.  The  mere  fact,  however,  that  goods  are 
manufactured  or  otherwise  prepared  to  be  sold  outside  of  the 
state  does  not  exempt  them  from  state  taxation  or  from  state 
regulations  until  they  have  actually  become  subjects  of  com- 
merce by  the  commencement  of  transportation  to  another 
state  or  country.  (See  Kiddy.  Pearson.)  On  similar  reason- 
ing it  has  been  held  that  the  anti-trust  and  combination 
statutes  passed  by  Congress  in  the  exercise  of  its  power 
to  regulate  interstate  and  foreign  commerce  (Act  of  1890, 
known  as  the  Sherman  Act)  have  no  application  to  trusts  and 
combinations  affecting  the  manufacture  of  goods  in  a  state, 
for  the  reason  that  such  trusts  and  combinations  are  subject 
only  to  state  regulation  {^United  States  v.  E.  C.  Knight 
Company) . 

But  the  state  taxing  power  cannot  be  so  exercised  as  to  im- 
pose specific  burdens  upon  persons  or  corporations  engaged 


§93]  State  Taxation.  i6i 

in  interstate  or  foreign  commerce.  Thus  it  has  been  held 
(^Philadelphia,  etc.  Steamship  Co.  v.  Pennsylvania)  that  a  state 
tax  on  the  gross  receipts  of  a  railway  company  or  a  steamship 
line  is  unconstitutional  if  a  substantial  part  of  such  receipts 
are  from  interstate  or  foreign  commerce.  Likewise  a  specific 
tax  on  a  telegraph  company  based  upon  its  gross  receipts  for 
the  transmission  and  delivery  of  telegrams  is  unconstitutional 
if  the  company  is  engaged  in  transmitting  messages  to  or  from 
other  states  and  countries.  (See  Telegraph  Co,  v.  Texas^  It 
is  entirely  proper,  however,  to  require  corporations  engaged 
in  interstate  commerce  to  pay  taxes  in  the  state  based  on  the 
value  of  their  business  within  its  limits,  and  it  may  properly  be 
required  that  a  corporation  transacting  such  business  in  the 
state  shall  pay  state  taxes  in  accordance  with  the  entire 
amount  or  profits  of  its  business  in  all  the  states  in  which  it 
operates,  proportioned  to  the  share  of  that  business  which  is 
done  in  the  state  which  levies  the  tax.  (See  Adams  Express 
Company  v.  Ohio  State  Auditor^  and  Allen  v.  Pullman  Palace 
Car  Co.).  But  the  state  cannot  impose  a  tax  upon  the  entire 
capital  stock  of  a  foreign  corporation  engaged  in  interstate 
commerce  as  a  condition  to  allowing  it  to  also  do  local  busi- 
ness.    (Western  U?iion  Tel.  Co.  v.  Kansas.) 

93.    Federal  Regulations  of  Commerce. 

In  the  exercise  of  its  power  to  regulate  interstate  and  foreign 
commerce,  Congress  has  enacted  statutes  which  need  not  be 
here  discussed  in  detail.  It  has  in  a  variety  of  ways  regulated 
the  commerce  on  navigable  rivers  and  lakes.  It  has  regulated 
railroad  transportation  for  the  purpose  of  preventing  unjust 
discrimination  in  rates  as  between  persons  and  localities,  and 
has  provided  (1887)  for  an  interstate  commerce  commission, 
having  specific  duties  to  perform  with  reference  to  the  enforce- 
ment of  these  laws.  It  has  also  exercised  incidentally  a  police 
power  over  interstate  commerce  (see  above,  §  49)  as  by  prohib- 
iting the  transportation  from  one  state  to  another  of  lottery 
tickets,  thus  extending  the  power  to  regulate  so  as  to  amount 
to  entire  exclusion   {Lottery  Case).     It  has  passed  statutes  as 


1 62  Regul.  ^ion  of  Commerce.  [§93 

to  immigration  and  in  a  variety  of  ways  regulated  and  exercised 
supervision  over  commerce  on  the  high  seas  either  with  foreign 
countries  or  between  ports  of  the  different  states. 

In  the  further  exercise  of  its  powers  as  to  interstate  and  for- 
eign commerce,  Congress  has  by  the  so-called  Sherman  Act  of 
1890  prohibited  the  making  of  contracts  and  the  formation  of 
trusts  and  combinations  and  every  other  attempt  to  monopo- 
lize such  commerce,  and  by  a  statute  of  1898  made  provision 
for  settlement  of  controversies  between  carriers  engaged  in 
such  commerce  and  their  employes.  As  to  the  Sherman  Act 
it  has  been  decided  that  while  the  manufacturer  of  goods  to  be 
shipped  into  another  state  or  abroad  is  not  within  the  control 
of  Congress  {United  States  v.  E.  C,  Knight  Co.)  the  consoli- 
dation of  competing  railroad  lines  by  means  of  the  organiza- 
tion of  a  corporation  to  hold  and  control  the  stock  of  the 
railroad  companies  forming  such  lines  so  as  to  completely  pool 
their  interests  and  take  over  all  inducement  for  competition  is 
an  arrangement  in  restraint  of  trade  and  an  attempt  to  form  a 
monopoly,  and  is  invalid  {Northern  Securities  Co.  v.  United 
States).  Congress  has  power  under  the  commerce  clause  of 
the  Constitution  to  restrict  and  regulate  the  use  of  every  instru- 
mentality employed  in  interstate  or  international  commerce,  so 
far  as  it  may  be  necessary  to  do  so  in  order  to  prevent  the  re- 
straint thereof  denounced  by  the  Anti  Trust  Act  (  United  States 
V.  Standard  Oil  Co.).  Several  other  important  decisions  have 
been  rendered  as  to  the  validity  and  effect  of  that  statute,  but 
they  are  all  referred  to  and  commented  on  in  the  case  last  above 
cited.  For  the  purpose  of  preventing  discrimination  in  rates 
of  transportation  in  interstate  commerce  Congress  has  passed 
an  act  (1903)  making  it  a  crime  for  a  carrier  to  transport  mer- 
chandise at  less  than  its  published  rate.  {Armour  Packing 
Co.  v.  United  States) . 

The  power  of  Congress  to  regulate  commerce  has  been  held 
to  extend  to  the  preservation  of  the  navigability  of  rivers  and 
lakes  within  state  limits,  and  in  the  exercise  of  this  power 
Congress  may  prohibit  the  construction  of  dams  or  the  diver- 
sion of  water,  even  at  points  above  the  head  of  navigation  of 


§  93]  Federal  Regulations.  163 

a  navigable  stream,  so  as  to  preserve  the  flow  of  water  in  that 
portion  of  the  stream  which  is  capable  of  use  for  the  purpose 
of  navigation  {United  States  v.  Rio  Grande  Dam  and  Irri- 
gation Co.  and  Kansas  v.  Colorado^  . 

In  the  exercise  of  its  power  to  regulate  commerce  with  the 
Indian  tribes  Congress  has  prohibited  the  sale  of  intoxicating 
liquors  to  the  members  of  such  tribes,  and  in  other  ways 
sought  to  protect  them  from  impositions  or  injury  at  the 
hands  of  white  persons  seeking  to  take  advantage  of  their 
helpless  condition.  And  it  has  been  held  {United  States  v. 
Holiday)  that  such  statutes  may  be  made  applicable  to  com- 
mercial transactions  between  the  members  of  Indian  tribes 
and  white  persons,  whether  such  transactions  take  place  on 
Indian  reservations  or  elsewhere. 

But  the  control  which  the  federal  government  may  exercise 
over  such  commerce  as  is  placed  under  the  regulation  of  Con- 
gress is  not  limited  to  the  enactment  of  statutes.  The  federal 
executive  may  act,  even  to  the  extent  of  employing  the  military 
power  to  prevent  unlawful  interference  with  such  commerce, 
as  he  may  in  preventing  interruption  in  the  carrying  of  the 
mails,  and  injunction  suits  may  be  prosecuted  under  his  au- 
thority to  stop  any  such  interference.  This  power  was  exer- 
cised by  President  Cleveland  in  1894  on  the  occasion  of  the 
so-called  "  Pullman  Strike,"  and  was  sustained  by  the  Supreme 
Court  in  the  Debs  Case, 


CHAPTER   XV. 

CORPORATIONS:    CREATION   AND   REGULATION. 

94.    References. 

James  Kent,  Commentaries,  Lect.  xxxiii ;  J.  Story,  Constiiution,  §§  1259- 
1271,  1392-1395;  T.  M.  Cooley,  Constitutional  Limitations^  ch.  vii  and 
**  276-284,  575-582;  T.  M.  Cooley,  Constitutional  Law  (3d  ed.),  333, 
334,  338-342,  and  ch.  xvii ;  J.  R.  Tucker,  Constitution,  829-836,  863- 
865;  S.  D.  Thompson,  Commentaries  on  Corporations,  I,  chs.  i-v,  IV, 
ch.  118;  H.  O.  Taylor,  Corporations,  chs.  i-iv,  viii;  J.  F.  Dillon,  Munic- 
ipal Corporations,  chs.  i-vi ;  C.  B.  Elliott,  Private  Corporations,  chs.  i,  iv ; 
C.  B.  Elliott,  Public  Corporations,  chs.  i-iv;  W.  L.  Clark,  Corporations, 
chs.  i,  ii,  viii;  E.  Freund,  Legal  Nature  of  Corporations  (University  of 
Chicago  Press,  1896) ;  J.  P.  Davis,  Nature  of  Corporations  {Pol.  Sci.  Quart., 
XII,  273) ;  G.  W.  Pepper,  Introduction  to  Study  of  Law  of  Associations, 
{Am.  Law  Register,  Vol.  XLIX,  O.  S.,  255) ;  S.  D.  Thompson,  Abuses  of 
Corporate  Privileges  {Am.  Law  Rev.,  XXVI,  169)  ;  A.  J.  Eddy,  Combina- 
tions; R.  T.  Ely,  Monopolies  and  Trusts ;  F.  H.  Cooke,  Law  of  Trade  and 
Lxibor  Combinations  ;  W.  W.  Cook,  Corporations  as  Affected  by  Statutes  and 
Constitutions ;  E.  L.  Von  Halle,  Trusts  or  Ijidustrial  Combinations  and 
Coalitions  in  the  United  States  ;  T.  C.  Spelling,  Trusts  and  Monopolies  ;  A. 
Stickney,  State  Control  of  Trade  and  Commerce  ;  Civic  Federation,  Report 
of  Chicago  Trust  Conference  of  i8gg\  Industrial  Commission  Report,  Vol.  I 
(Government  Printing  Office,  1900) ;  J.  W.  Burgess,  Private  Corporations 
from  the  Point  of  View  of  Political  Sciejtce  {Pol.  Sci.  Quart.,  XIII,  201)  ;  R.  C. 
Y)2iw\s,  Judicial  Decisions  and  Statutes  Prohibiting  Combination  and  Trusts, 
{Quart,  four,  of  Econ.,  XIV,  416)  ;  F.  J.  Goodnow,  Trade  Combinations 
at  Common  Law  {Pol.  Sci.  Quart.,  XII,  2ii2) ;  A.  T.  Hadley,  Difficulties  of 
Public  Business  Management  {Pol.  Sci.  Quart.,  Ill,  572) ;  E.  Q.  Keasbey, 
New  Jersey  and  the  Great  Corporations  {Harv.  Law  Rev.,  XIII,  198,  264)  ; 
E.  Q.  Keasbey,  Jurisdiction  over  Foreign  Corporations  { Harv.  Law  Rev., 
XII,  i) ;  F.  E.  Horack,  Organization  and  Control  of  Industrial  Corpora- 
tions (1903);  A.  B.  Hart,  Actual  Government  (Amer.  Citizen  Series) 
§  209;  McCulloch  v.  Maryland  (1819,  4  Wheaton,  316;  4  Curtis'  De- 
cisions, 415;  McClain's  Cases,  i;  Thayer's  Cases,  271;  Marshall's 
Decisions,  Dillon's  ed.,  252);  Munn  v.  Illinois  (1876,  94  U.  S.  113; 
Thayer's  Cases,  743;  McClain's  Cases,  946) ;  Trustees  of  Dartmouth  Col- 
lege v.  Woodward  (1819,  4  Wheaton,  518;  4  Curtis'  Decisions,  463; 
Thayer's   Cases,  1564;   McClain's   Cases,   1006;   Marshall's   Decisions, 

164 


§  95]  Classes  of  Corporations.  165 

Dillon's  ed,,  299);  East  Hartford  v.  Hartford  Bridge  Co.  (1850,  10 
Howard,  511;  18  Curtis'  Decisions,  483;  McClain's  Cases,  1021)  ; 
United  States  v.  E.  C.  Knight  C<7.  (1895,  156  U.  S.  I  ;  McClain's  Cases, 
263  ;  Thayer's  Cases,  2185) ;  A'orthern  Securities  Co.  v.  United  States 
(1904,  193  U.  S.  147;  24  Sup.  Court  Reporter,  436;  McClain's  Cases, 
2d  ed.,  1081). 


95.     Classes  of  Corporations. 

A  corporation  is  a  collection  of  individuals  authorized  by 
the  government  to  enjoy  the  privilege  of  acting  as  one  body, 
and  of  being  considered  as  an  artificial  person,  in  the  owning  of 
property  and  the  enjoying  of  rights,  as  distinct  from  the  per- 
sons composing  it.  As  an  artificial  person,  it  has  a  continuous 
existence,  notwithstanding  changes  in  its  membership.  Indi- 
viduals may  contract  with  each  other  as  to  their  collective 
rights  and  become  joint  owners  of  property,  may  form  part- 
nerships, and  in  various  ways  may  have,  for  the  time  being,  a 
unity  of  interest;  but  the  privilege  of  organizing  associations 
which  shall  be  considered  as  owning  property  as  units  and 
having  rights  which  are  not  treated  in  law  as  the  rights  and 
property  of  the  individuals  composing  such  associations  is  a 
privilege  which  only  the  sovereign  power  can  confer.  In 
England  corporate  franchises  may  be  conferred  by  the  crown, 
but  they  may  be  also  authorized  by  act  of  Parliament,  and  in 
this  country  the  creation  of  corporations  is  one  of  the  import- 
ant functions  of  the  legislative  department  of  government. 

Formerly  the  legislative  authority  to  create  a  corporation  was 
exercised  by  the  passage  of  a  statute  defining  the  powers  of 
the  corporation  created,  and  providing  for  the  method  of  its 
organization  and  managen\ent  and  the  exercise  of  the  powers 
conferred,  and  this  was  called  its  charter.  But  it  is  now  usual 
to  make  general  statutory  provisions  for  the  organization  and 
the  management  of  the  affairs  of  corporations,  and  to  define 
the  powers  which  they  may  exercise,  so  that  individuals  desir- 
ing to  associate  themselves  together  into  a  corporation  may 
do  so  without  special  legislation  by  pursuing  the  course  pointed 
out  by  statute.     In  some  states,  special  statutes  for  the  creation 


1 66  Corporations.  [§95 

Df  corporations  are  prohibited  in  the  constitution,  and  no  cor- 
porations can  be  created  except  in  accordance  with  general 
statutory  provisions.  When  a  corporation  is  thus  organized 
under  general  statutory  authority  it  has  no  charter,  properly 
speaking,  but  the  articles  of  incorporation  or  ordinances  or 
by-laws  which  it  adopts  under  the  general  power  to  incorporate, 
taken  in  connection  with  the  general  statute  authorizing  such 
corporation,  constitute  its  charter,  and  it  has  the  powers  which 
it  undertakes  to  exercise  in  the  proper  method,  subject  al- 
ways to  the  limitations  of  the  general  statutory  provisions 
under  which  its  organization  is  attempted  or  effected. 

The  purposes  for  which  corporations  may  be  chartered  or 
organized  are  various,  but  maybe  divided  into  general  classes  : 
(i)  those  for  private  advantage;  (2)  those  public  in  their 
nature,  analogous  to  the  purposes  for  which  governments  are 
instituted.  Corporations  are  correspondingly  divided  into 
private  and  public  corporations. 

The  ordinary  corporation  organized  for  transacting  business 
and  owning  property  is  a  private  corporation  ;  the  object  of  its 
creation  is  primarily  to  promote  the  personal  interests  of  its 
members.  Manufacturing  corporations,  corporations  organized 
to  carry  on  wholesale  or  retail  business  of  various  kinds,  in- 
surance companies,  and  railroad,  telegraph,  telephone,  and 
steamboat  companies,  all  will  be  readily  recognized  as  cor- 
porations private  in  their  objects,  for  they  are  all  created  and 
carried  on  with  the  primary  purpose  of  promoting  the  indi- 
vidual financial  interests  of  those  interested  in  them.  Such 
corporations  as  these  are  sometimes  designated  as  corporations 
organized  for  pecuniary  profit,  because  they  contemplate  the 
ownership  of  property  or  the  expenditure  of  money  for  the 
personal  advantage  of  their  members.  Other  private  corpora- 
tions, however,  are  organized  for  the  purpose  of  promoting 
the  common  individual  interests  of  their  members  without 
having  any  immediate  financial  purpose.  Thus  persons  may 
associate  themselves  together  in  a  corporation  with  the  object 
of  promoting  scientific  research,  or  preserving  or  inculcating 
a  particular  form  of  rehgious  belief,  or  promoting  some  work 


§96]  Powers  of  States.  167 

of  charity  or  the  like.  Although  such  corporations  have  not 
for  their  primary  objects  the  financial  benefits  of  the  mem- 
bers, they  may  nevertheless  own  property  and  raise  and  ex- 
pend money  in  furtherance  of  the  general  purposes  of  their 
organization. 

Public  corporations,  on  the  other  hand,  are  organized  for 
the  general  benefit  and  welfare  of  the  people  of  a  particular 
locality,  in  the  promotion  of  objects  of  a  public  nature. 
Familiar  examples  of  public  corporations  are  cities,  towns,  and 
school  districts ;  but,  as  will  hereafter  be  explained,  the  state 
itself  and  the  subdivisions  of  a  state  for  political  and  gov- 
ernmental purposes,  such  as  counties  and  townships,  are  also 
spoken  of  as  public  corporations. 

96.    Pcwers  of  States  as  to  Private  Corporations. 

In  general,  the  power  to  create  and  regulate  private  cor- 
porations is  in  the  state  governments  and  not  in  the  federal 
government.  It  is  a  branch  of  the  general  police  power,  that 
is,  the  power  to  legislate  as  to  the  relation  of  individuals  to 
each  other.  As  already  indicated  in  the  preceding  section, 
this  authority  is  incident  to  the  general  legislative  power  with- 
out further  specification,  and  is  exercised  by  the  legislative 
department  by  virtue  of  provisions  in  a  state  constitution  for 
the  creation  of  a  legislative  department.  There  are  limita- 
tions on  the  power  of  the  state  in  this  respect,  found  in  the 
provisions  of  the  federal  constitution  that  no  state  shall  im- 
pair the  obligation  of  contracts  (Art.  I,  §  10,  ^  i)  ;  and  that 
no  state  shall  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the   equal   protection  of  the  laws  (Amend.  XIV, 

§1). 

The  importance  of  the  provisions  as  to  the  impairing  of  the 
obligation  of  contracts  grows  out  of  the  fact  that  the  privilege 
which  is  granted  by  the  state  to  a  private  corporation,  whether 
it  be  for  pecuniary  purposes  or  for  purposes  not  pecuniary,  is 
considered  to  be  granted  as  the  result  of  a  contract  between 
the  state  and  the  corporation,  and  therefore  any  impairment 


1 68  Corporations.  [§97 

or  restriction  of  the  powers  of  such  a  corporation  (  Trustees  of 
Dartmouth  College  v.  Woodward)  otherwise  than  as  the  right 
to  do  so  may  have  been  reserved  by  the  state  at  the  time  of 
its  creation  (either  by  special  provision  in  the  charter  or  by 
general  provision  in  the  constitution  or  statutes  in  the  state) 
would  be  an  impairment  of  the  contract  with  the  state  (see  be- 
low, §  269).  The  provisions  as  to  due  process  of  law  and  equal 
protection  of  the  laws  are  applicable  to  private  corporations, 
which  are  deemed  persons  within  the  language  of  those  clauses 
of  the  constitution,  although  they  are  artificial  and  not  natural 
persons ;  a  private  corporation  is  in  this  sense  a  person, 
although  it  is  not  a  citizen.      (See  below,  §  259.) 

One  further  distinction  must  here  be  made  relating  to  the 
government  control  of  private  corporations.  With  reference 
to  their  property  and  business  they  are  subject  to  the  same 
supervision  under  the  police  power  as  private  individuals. 
But  so  far  as  their  business  is  public  in  its  nature,  such  as  the 
carriage  of  goods  and  passengers  for  hire,  the  supply  of  water, 
gas,  electric  light,  and  other  public  utilities,  or  the  operation 
of  pipe  lines  for  the  transmission  of  oil  or  gas,  or  of  ware- 
houses, telegraphs,  and  telephones,  they  are  peculiarly  subject 
to  the  police  regulation  as  to  rates.  (^Munn  v.  Illinois.  See 
also  above,  §  48.) 

97.  Public  Corporations  Classified. 

Powers  and  privileges  are  given  by  the  state  to  public  corpora- 
tions, not  for  the  individual  benefit  of  the  persons  who  are 
members  of  them,  but  for  their  collective  benefit  as  a  part  of 
the  people  of  the  state,  and  membership  in  such  corporations 
depends,  not  upon  individual  choice,  but  upon  residence  in  a 
particular  locality  or  within  particular  limits.  It  is  evident, 
therefore,  that  the  charter  of  a  public  corporation  or  the  priv- 
ilege granted  to  it  to  have  corporate  existence  does  not  con- 
stitute a  contract,  the  impairment  of  which  is  prohibited  by 
the  federal  constitution  relating  to  impairment  of  contracts 
by  the  states.  (See  below,  §  269.)  Consequently  it  is 
entirely  optional  with  the  legislature  of  a  state  to  create  such 


§97]        Public  Corporations  Classified.         169 

public  corporations  as  it  sees  fit,  to  change  the  laws  relating 
to  their  powers  and  privileges  whenever  and  however  it  is 
deemed  to  be  advisable,  and  to  discontinue  them  according 
to  its  best  judgment,  having  in  view  the  public  interests,  re- 
gardless of  any  claim  of  vested  right.  But  so  far  as  such 
corporations  may  be  authorized  to  make  contracts  and  own 
property,  they  may  perhaps  be  said  to  have  vested  rights 
which  the  legislature  cannot  directly  interfere  with.  It  has 
also  been  contended  that  there  is  a  constitutional  right  of 
local  self-government,  that  is,  a  right  possessed  by  the  people 
composing  a  city  or  town  to  manage  their  own  local  affairs 
which  cannot  be  taken  away  or  substantially  impaired  by  the 
state  legislature.  If  the  state  constitution,  either  in  express 
language  or  by  implication,  recognizes  the  right  of  local  self- 
government,  then  no  doubt  a  limitation  on  the  power  of  the 
legislature  with  reference  to  such  public  corporations  as  cities 
and  towns  may  well  be  inferred.  But  as  yet  no  such  implied 
limitations  have  been  agreed  to  and  it  will  be  impossible  to  dis- 
cuss the  matter  more  fully  or  accurately  without  an  elaboration 
which  would  be  out  of  place  in  an  elementary  treatise.  While, 
as  a  general  principle  or  theory,  the  right  of  local  self-govern- 
ment is  recognized,  it  by  no  means  follows  that  a  state  legisla- 
ture is  limited  otherwise  than  as  its  discretion  may  dictate  in 
legislating  with  reference  to  the  power  of  public  corporations 
which  can  exist  only  as  a  result  of  the  legislative  will.  At  any 
rate,  it  is  universally  conceded  that  the  state  legislature  may 
provide  for  changing  the  boundaries  of  public  corporations  and 
fixing  the  limits  within  which  the  powers  conferred  upon  them 
are  to  be  exercised. 

In  this  connection  it  is  proper  to  suggest  a  convenient 
division  of  public  corporations  into  two  classes.  The  term 
public  corporation  can  properly  be  applied  only  to  collections 
of  persons  to  which  are  given  some  powers  of  local  self-govern- 
ment and  which  are  authorized  to  act  in  an  independent  and 
collective  capacity.  Such  corporations  are  usually  termed 
municipal  corporations.  But  the  state  may  be  divided  into 
counties,  townships,  or  similar  portions   for  general  govern- 


I/O  Corporations.  [§98 

mental  purposes,  including  the  ownership  of  property,  although 
the  people  of  such  portions  are  not  given  any  corporate  powers. 
Such  divisions  are  created  merely  to  facilitate  the  election  of 
officers,  the  levying  of  taxes,  and  like  purposes  which  the  state 
can  provide  for  as  it  sees  fit.  Counties  and  townships  are 
therefore  not  public  corporations  in  a  proper  sense  and  are  not 
municipal  corporations,  but  for  convenience  they  are  sometimes 
designated  as  quasi-corporations.  The  distinction  between 
these  two  classes  of  corporations  is  not  very  definitely  fixed, 
but  some  distinction  is  usually  recognized.  The  state  itself  is 
sometimes  spoken  of  as  a  public  corporation,  but  only  for  pur- 
poses of  convenience.  It  does  not  derive  its  authority  from 
the  federal  government,  nor  from  any  other  definite  source 
except  the  will  of  the  people  as  expressed  in  its  constitution ; 
and  the  rules  respecting  the  powers  which  it  may  exercise  are 
only  remotely  analogous  to  those  recognized  as  applicable  to 
corporations. 

98.  Fewer  of  the  Federal  Government  to  Create 
Corporations. 

As  the  federal  government  has  only  the  powers  which  are  ex- 
pressly or  by  implication  conferred  upon  it  in  the  constitution, 
and  as  the  constitution  does  not  expressly  provide  for  the 
creation  of  corporations  by  Congress,  the  power  of  Congress  to 
create  a  corporation  must  exist,  if  at  all,  by  implication.  It  is 
well  settled,  however,  that  Congress  may,  in  the  exercise  of  its 
implied  powers,  create  corporations  when  their  creation  is  a 
necessary  and  proper  means  of  carrying  out  the  powers  con- 
ferred upon  it  {McCulioch  v.  Maryland) .  Thus,  as  Congress 
has  the  power  to  borrow  money  and  regulate  the  currency,  it 
may  charter  a  United  States  bank  with  branches  through  which 
the  financial  operations  of  the  government  may  be  conducted ; 
or  it  may,  by  general  law,  provide  for  the  organization  of 
national  banks  with  authority  to  carry  on  a  general  banking 
business  and  issue  currency.  It  has  also,  in  the  exercise  of  its 
power  with  relation  to  post  offices  and  post  roads  and  interstate 
commerce,   chartered  railroad    companies    with   authority  to 


§  9^]    Power  of  the  Federal  Government.    171 

operate  lines  of  road  through  different  states  and  territories. 
No  doubt  the  power  to  create  private  corporations  and  to  reg- 
ulate the  corporations  thus  created  might  legitimately  be 
further  extended  if  Congress  should  deem  it  wise  to  do  so. 
Municipal  corporations  within  the  various  states  must  neces- 
sarily, however,  derive  their  authority  from  the  states  and  not 
from  Congress.  But  in  the  portions  of  the  territory  of  the 
United  States  which  are  not  within  the  limits  of  any  state  and 
which  are  therefore  subject  exclusively  to  congressional  legis- 
lation, Congress  may  create  or  provide  for  the  creation  of  both 
municipal  and  private  corporations  as  it  sees  fit. 

It  is  apparent,  therefore,  that  while  Congress  may  regulate 
corporations  created  under  its  authority,  and  may  also  to  some 
extent  control  the  business  of  corporations  engaged  in  inter- 
state or  foreign  commerce  (see  above,  §  93),  it  has  no  power 
to  regulate  other  corporations  ( United  States  v.  E.  C.  Knight 
Co.).  The  fact  that  state  regulations  are  not  applicable  beyond 
the  limits  of  the  state,  and  that  these  regulations  are  by  no 
means  uniform  as  to  their  policy  or  their  methods,  has  sug- 
gested the  desirability  of  a  further  control  by  Congress  which 
should  be  uniform  throughout  the  states.  But  without  an 
amendment  to  the  federal  constitution  giving  Congress  further 
power,  it  does  not  seem  possible  to  suggest  any  theory  on 
which  Congress  can  legislate  with  reference  to  corporations 
in  general. 


CHAPTER  XVI. 
OTHER  ENUMERATED  POWERS  OF  CONGRESS. 

99.  References. 

Naturalization:  J.  Story,  Constitution,  §§  1102-1104 ;  J.  R.  Tucker, 
Constittction,  §  269;  J.  Kent,  Commentaries,* ^2^;  T.  M.  Cooley,  Consti- 
tutional Law,  ch.  iv,  §  3  ;  Henry  Wheaton,  International  Law  ( Lawrence's 
ed.)  Appendix,  p.  891  ;  A.  B.  Hart,  Actual  Government  (Amer.  Citizen 
Series)  §  9;  Boyd  v.  Thayer{\%<^2,  143  U.  S.  135  ;  McClain's  Cases,  423)  ; 
In  re  Rodriguez  (U.  S.  Dist.  Ct.  1897,  81  Federal  Rep.  337  ;  McClain's 
Cases,  434) ;  In  re  Halladjian  (U.  S.  C.  C,  1909,  174  Fed  Rep.  834). 

Bankruptcy:  J.  Story,  Constitution,  §§  1105-1115;  J.  R.  Tucker, 
Constitution,  §§  270,  271;  T.  M.  Cooley,  Constitutiottal  La%v,  ch.  iv, 
§  4;  Bahhvin  v.  Hale  (1863,  i  Wallace,  223;  McClain's  Cases,  436); 
Ogden  V.  Saunders  (1827,  12  Wheaton,  213;  7  Curtis'  Decisions,  132; 
Thayer's  Cases,  1590;  Marshall's  Decisions,  Dillon's  ed.,  549) ;  Sturgesw. 
Crowninshield  {1^1%  4  Wheaton,  117;  4  Curtis'  Decisions,  362  ;  Thayer's 
Cases,  1582). 

Copyrights  and  Patents:  J.  Story,  Constitution,  §§  1151-1x56; 
J.  R.  Tucker,  Constitution,  §  277  ;  T.  M.  Cooley,  Constitutional  Law, 
ch.  iv,  §  ID ;  E.  A.  Drone,  Copyright ;  A.  H.  Walker,  Patents  ;  A.  B.  Hart, 
Actual  Government,  §§  492,  493;  Wheaton  v.  Peters  (1834,  8  Peters,  591 ; 
II  Curtis'  Decisions,  223;  McClain's  Cases,  480)  ;  Patterson  \.  Kentucky 
(1878,  97  U.  S.  501;  McClain's  Cases,  489);  Herdic  v.  Roessler  (1888, 
109  N.  Y.  127  ;  McClain's  Cases,  495) ;  Dale  Tile  Manufacturing  Co.  v. 
Hyatt  (1888,  125  U.  S.  46;  McClain's  Cases,  498);  Trade-Mark  Cases 
(1879,  100  U.  S.  82). 

Weights  and  Measures:  J.  Story,  Constitution,  §  1122;  A.  B.  Hart, 
Actual  Government,  §  213;  The  Miantinomi  (1855,  3  Wallace,  Junior,  46; 
Thayer's  Cases,  2192);  Weaver  v.  Fegely  (1857,  29  Penn.  State,  27; 
McClain's  Cases,  471;  Thayer's  Cases,  2195). 

Post-Offices  and  Post-Roads:  J.  Story,  Constitution,  §§  11 24-11 50; 
J.  R.  Tucker,  Constitution,  §§  274-276 ;  T.  M.  Cooley,  Constitutional  Law, 
ch.  iv,  §  9 ;  Ex  Parte  Jackson  (1877,  96  U.  S.  727) ;  In  re  Rapier  (1892,  143 
U.  S.  no;  McClain's  Cases,  478;  Thayer's  Cases,  732). 

172 


§  loo]  Naturalization.  173 

Slavery:  J.  Story,  ConstiUition  (Suppl.  Cooley's  ed.),  §§  191 5-1927; 
J.  R.  Tucker,  Constitution,  §§  254,  309;  T.  M.  Cooley,  Constitutional 
Law,  ch.  xiii,  §  i  ;  Prigg  v.  Co^nmonwealth  (1842,  16  Peters,  539;  Thayer's 
Cases,  476) ;  Dred  Scott  Case,  Scott  v.  Sandford  (1857,  19  Howard,  393  ; 
Thayer's  Cases,  480,  and  note) ;  State  v.  Mann  (N.  C,  1829,  2  Dev.  263  ; 
Thayer's  Cases,  473) ;  Lemmon  v.  People  (i860,  20  N.  Y.  562,  Thayer's 
Cases,  496) ;  Civil  Rights  Cases  (1883,  I09  U.  S.  3  ;  Thayer's  Cases,  554^ 
McClain's  Cases,  37);  Robertson  v.  Baldwin  (1897,  165  U.  S.  275)! 
Clyattv.  United  States  (1905,  197  U.  S.  207). 

Government  of  District  of  Columbia:  J,  Story,  Constitution, 
§§  1216-1223;  J.  R.  Tucker,  Constitution,  §  293;  T.  M.  Cooley,  Constitu- 
tional Law,  ch.  iv,  §  13;  A.  B.  Hart,  Actual  Government,  §  162;  Metro- 
politan Railroad  Co.  v.  District  of  Columbia  (1889,  132  U.  S.  I ;  McClain's 
Cases,  522)  ;  Roach  v.  Van  Riswick  (D.  C,  1879,  4  McArthur  &  M.  171)  ; 
Hepburn  v.  Ellzey  (1804,  2  Cranch,  445;  i  Curtis'  Decisions,  520;  Thay- 
er's Cases,  348). 

Control  of  Sites  for  Forts,  Arsenals,  and  Public  Buildings  : 
J.  Story,  Constitution,  §§  1 224-1 235;  J.  Kent,  Commentaries,  *429;  T.  M. 
Cooley,  Constitutional  Law,  ch.  iv,  §  13;  A.  B,  Hart,  Actual  Government, 
§  163;  Ft.  Leavenworth  Ry.  Co.  v.  Lowe  (1885,  114  U.  S.  525  ;  McClain's 
Cases,  528);  Commonwealth  v.  C/^r^  (1811,  8  Mass.  72);  Sinks  v.  Reese 
{1869,  19  Ohio  State,  306)  ;  State  v.  Kelly  (1884,  76  Maine,  331);  Kohl 
V.  United  States  (1875,  9^  U.  S.  367 ;  McClain's  Cases,  1061 ;  Thayer's 
Cases,  956). 

100.  Naturalization. 

In  a  subsequent  chapter  the  subject  of  citizenship  will  be 
considered  (see  below,  ch.  xxxiv),  and  it  will  there  appear 
that  persons  may  be  citizens  of  the  United  States  either  by 
birth  or  by  naturalization ;  and  that  those  who  are  citizens  of 
the  United  States  by  virtue  of  either  birth  or  naturalization  are 
also  citizens  of  the  states  in  which  they  reside.  It  will  also 
there  appear  that  naturalization  may  be  effected,  not  only  by 
means  of  a  general  law,  but  also  by  statutes  or  treaties  applica- 
ble to  limited  classes  of  persons.  In  the  present  consideration 
of  the  enumerated  powers  of  Congress,  we  are  concerned  only 
with  the  provision  that  Congress  shall  have  power  "  To  establish 
an  uniform  rule  of  naturaUzation"  (Const.  Art.  I,  §  8,  ^  4). 
In  the  exercise  of  this  power  Congress  has  prescribed  the 
method  by  which  aliens,  that  is,  persons  not  born  in  the  United 
States  and  subject  to  the  jurisdiction  thereof,  may  become 
citizens. 

It  is  only  within  modern  times  that  the  privilege  of  expatri- 


174  Other  Powers  of  Congress.         [§  loo 

ation  has  come  to  be  fully  accorded  by  civilized  nations  to  their 
own  subjects,  but  from  much  earlier  times  governments  have 
asserted  the  right  to  admit  to  citizenship  those  who  have 
previously  been  subjects  of  another  government,  and  this 
has  frequently  given  rise  to  conflicting  obligations ;  for  the 
doctrine  that  a  subject  cannot  throw  off  his  allegiance,  even 
by  departing  from  the  country  of  his  nativity  and  going  to 
reside  elsewhere,  is  inconsistent  with  the  doctrine  that  he 
may  be  admitted  to  rights  of  citizenship  in  a  foreign  country. 
For  instance,  the  assertion  on  the  part  of  Great  Britain  of  the 
right  to  impress  into  her  naval  service  persons  who  had 
formerly  been  British  subjects,  but  had  by  naturalization  be- 
come citizens  of  the  United  States,  was  one  of  the  causes 
leading  to  the  War  of  1812.  In  1868  Congress  passed  a 
statute  definitely  asserting  the  right  of  subjects  of  foreign 
countries  to  absolve  themselves  from  such  allegiance,  and 
providing  for  expatriation  on  the  part  of  citizens  of  the 
United  States  desiring  to  become  subjects  of  foreign  states, 
and  since  that  time  treaties  have  been  made  with  other 
countries  by  which  the  right  of  expatriation  is  mutually 
recognized. 

But  without  any  definite  recognition  of  the  right  of  expatria- 
tion, it  has  been  the  policy  of  the  various  states  and  of  the 
United  States  from  the  beginning  to  admit  to  citizenship  on 
such  conditions  as  may  be  imposed  the  subjects  of  foreign 
governments  who  come  to  this  country  with  the  intention  of 
permanent  residence,  provided  such  persons  desire  to  assume 
the  duties  and  obligations  of  citizenship.  Prior  to  the  adoption 
of  the  federal  constitution  each  state  had  the  power  to  deter- 
mine for  itself  how  such  persons  should  acquire  citizenship, 
and  under  the  provisions  of  the  Articles  of  Confederation 
(Article  IV),  the  free  inhabitants  of  each  of  the  states  were 
entitled  to  all  the  privileges  and  immunities  of  free  citizens  in 
the  several  states.  Under  this  article  it  was  not  practicable 
for  any  one  state  to  restrict  citizenship  therein,  for  persons 
coming  to  that  state  from  other  states,  regardless  of  the  con- 
ditions which  the   state  imposed  with  reference  to  its  own 


§  loo]  Naturalization.  175 

citizenship,  would  be  entitled  to  the  same  privileges.  There- 
fore it  was  deemed  expedient  and  proper  to  provide  in  the 
federal  constitution  that  the  subject  of  naturalization  should 
be  regulated  by  Congress.  And  while  it  is  not  expressly  speci- 
fied in  the  constitution  that  the  power  of  Congress  in  this 
respect  excludes  the  power  of  the  states  to  legislate  on  the 
same  subject,  nevertheless  it  is  evident  that  this  power  of  Con- 
gress must  be  exclusive,  otherwise  there  would  be  no  uniform 
rule. 

Each  state  may  determine  for  itself  what  political  privileges 
shall  be  enjoyed  by  persons  who  are  residents  therein,  and 
such  privileges  may  be  extended  to  those  persons  who  are  not 
citizens  or  withheld  from  those  who  are.  (See  below,  §  193.) 
But  since  the  adoption  of  the  Fourteenth  Amendment,  by 
which  it  is  expressly  declared  that  citizens  of  the  United  States 
residing  in  any  state  are  citizens  of  that  state,  it  is  generally 
conceded  that  a  state  cannot  confer  citizenship,  and  that  the 
whole  subject  is  regulated  by  the  provisions  of  the  federal  con- 
stitution and  the  treaties  and  statutes  made  in  pursuance 
thereof. 

Congress  has  accordingly  provided  specifically  how  aliens 
may  become  citizens  of  the  United  States  and  of  the  state  in 
which  they  reside.  These  statutory  provisions  require  that  the 
alien  shall  make  a  preliminary  declaration  under  oath,  at  least 
two  years  prior  to  his  application  for  naturalization,  of  his 
intention  to  become  a  citizen  of  the  United  States,  and  to 
renounce  forever  all  allegiance  and  fidelity  to  any  foreign 
power ;  that  on  applying  for  citizenship  he  shall  show  that  he 
has  been  resident  within  the  United  States  for  five  years,  and 
within  the  state  or  territory  where  he  applies  for  naturaliza- 
tion for  at  least  one  year;  that  during  the  time  specified  he 
has  behaved  as  a  man  of  good  moral  character,  attached  to 
the  principles  of  the  constitution  of  the  United  States;  and 
that  he  entirely  renounces  and  abjures  all  allegiance  and  fidelity 
to  every  state  and  sovereignty,  and  particularly  by  name  to 
the  state  and  sovereignty  of  which  he  was  before  a  citizen  or 
subject.     The  application  may  be   made  to  a  court  of  the 


176  Other  Powers  of  Congress.  [§  100 

United  States  or  of  the  state  or  territory  in  which  he  appUes 
for  admission,  or  to  the  clerk  of  any  such  court,  and  the  clerk 
or  court  must  determine  whether  his  term  of  residence  and 
other  qualifications  are  such  as  entitle  him  to  naturalization. 

The  power  of  Congress  to  provide  for  naturalization  in 
accordance  with  uniform  rules  includes,  of  course,  the  power 
to  impose  conditions  or  to  limit  the  privilege  to  such  classes 
of  persons  as  in  its  judgment  it  shall  deem  proper.  At  first 
the  privilege  was  restricted  to  free  white  persons.  After  the 
abolition  of  slavery  the  words  "  free  white  "  were  stricken  out 
of  the  statute  and  for  a  time  there  was  no  limitation  as  to  race 
or  color ;  but  subsequently  the  statute  was  again  amended  so 
that  it  should  apply  only  to  aliens  who  are  free  white  persons 
and  to  aliens  of  African  nativity  and  persons  of  African  descent ; 
consequently  persons  not  belonging  to  the  white  races  nor  to 
the  African  race  cannot  be  naturalized.  It  has  accordingly 
been  held  that  persons  of  Indian  blood  coming  into  the  limits 
of  the  United  States,  for  instance  from  the  British  possessions, 
are  not  entitled  to  naturalization,  and  the  same  reasoning 
excludes  the  Chinese,  the  Japanese  (but  not  all  Asiatics,  for 
instance  not  Armenians,  see  In  re  Halladjian)  and  indeed  all 
persons  of  colored  races  save  only  those  of  the  African  race  {In 
re  Rodriguez).  But  it  must  be  borne  in  mind  that  these 
restrictions  apply  only  to  naturalization,  not  to  citizenship  by 
birth.  Persons  of  African  descent  born  within  the  limits  of 
the  United  States  are  citizens  by  birth  without  regard  to 
naturalization  either  of  themselves  or  their  parents.  Indians 
cannot  become  citizens  by  naturalization  under  the  general 
law,  but  may  be  naturalized  in  accordance  with  special  acts 
of  Congress  applicable  to  them.  Chinese  cannot  be  natu- 
ralized under  general  law,  and  by  a  special  statutory  provision 
they  are  expressly  excluded,  but  their  children  born  in  this 
country  are  citizens.      (See  below,  §  194.) 

In  connection  with  the  subject  of  naturalization  it  may  be 
remarked,  however,  that  persons  may  permanently  reside  in 
one  country  without  losing  citizenship  in  another,  and  that, 
without  assuming  the  duties  and  obligations  of  citizenship  in 
the  country  of  their  residence,  they  may  be  fully  subject  to  the 


§  loi]  Bankruptcy.  177 

laws  of  the  country  where  they  live.  Citizenship  involves  per- 
manent allegiance,  that  is,  an  allegiance  which  is  permanent 
until  dissolved  by  some  formal  expatriation;  but  temporary 
allegiance,  so  long  as  residence  continues,  is  owed  to  the 
sovereignty  and  laws  of  the  country  of  such  residence. 

101.    Bankruptcy.  '"^"^    * 

Congress  is  given  the  express  power  to  establish  *'  uniform 
laws  on  the  subject  of  bankruptcy  throughout  the  United 
States"  (Const.  Art.  I,  §  8,  ^  4).  A  bankruptcy  law  is  one 
by  which  provision  is  made  for  the  distribution  of  the  property 
of  an  insolvent  debtor  among  his  creditors  in  proportion  to 
their  proved  claims,  and  it  may  include  also  the  discharge  of 
the  debtor  from  further  liability  to  his  creditors.  The  statutes 
which  have  been  passed  by  Congress  on  the  subject  of  bank- 
ruptcy have  included  both  these  features,  and  they  are  dis- 
tinguishable in  this  respect  from  the  statutes  of  the  various 
states  which  usually  provide  only  for  the  distribution  of  prop- 
erty and  not  for  discharge  from  further  liability.  It  has  been 
determined,  however,  that  the  power  of  Congress  to  pass  bank- 
ruptcy laws  does  not  exclude  the  power  of  the  states  to  legis- 
late on  the  same  subject,  and  in  the  absence  of  any  legislation 
by  Congress,  the  states  may  legislate,  not  only  for  the  distri- 
bution of  an  insolvent  debtor's  property,  but  also  for  his  dis- 
charge from  further  liability.  But  the  states  are  restricted  in 
this  respect  by  limitations  which  are  not  applicable  to  Congress ; 
for  a  state  cannot  provide  for  the  discharge  of  a  debtor  from 
liabihty  under  a  contract  made  prior  to  the  passage  of  the  state 
law,  as  this  would  be  to  impair  the  obligation  of  the  contract 
(see  below,  §  265),  nor  can  it  discharge  the  bankrupt  from 
liability  to  creditors  living  outside  of  the  state  who  do  not 
present  their  claims  in  the  state  bankruptcy  proceeding,  for  this 
would  be  to  adjudge  and  determine  in  a  state  court  the  rights 
of  persons  not  subject  to  the  jurisdiction  of  such  court  i^Ogden 
V.  Saunders  J  Sturges  v.  Crowninshield,  and  Baldwin  v.  Hale), 

When  Congress  has  legislated  upon  the  subject  of  bank- 
ruptcy, any  state  statute  in  conflict  with  the  provisions  of  the 


178  Other  Powers  of  Congress.  [§  102 

federal  statute  on  the  subject,  or  any  proceedings  of  a  state 
court  interfering  with  the  proceedings  or  judgments  of  a 
federal  court  acting  in  pursuance  of  the  federal  statute,  will 
necessarily  be  invalid ;  but  so  far  as  the  administration  of  the 
state  insolvency  laws  does  not  interfere  with  the  operations  of 
the  federal  bankruptcy  law,  the  state  laws  will  still  be  valid. 
Proceedings  under  the  state  insolvency  statutes  are  therefore 
entirely  proper  until  some  action  under  the  federal  bankruptcy 
laws  has  been  commenced. 

102.    Copyrights  and  Patents. 

"To  promote  the  progress  of  science  and  useful  arts,"  Con- 
gress is  authorized  to  secure  "  for  limited  times  to  authors  and 
inventors  the  exclusive  right  to  their  respective  writings  and 
discoveries  "  (Const.  Art.  I,  §  8,  ^  8).  In  the  exercise  of  this 
authority,  Congress  (in  1790)  passed  patent  laws  and  copy- 
right laws,  the  term  "  patent "  being  used  to  describe  an  inven- 
tion or  discovery,  and  the  term  "  copyright "  to  signify  the 
exclusive  right  of  an  author  to  publish  his  writings. 

The  word  "  patent,"  as  originally  used  in  English  law,  signi- 
fied the  grant  of  some  privilege,  property,  or  authority  made 
by  the  government  or  sovereign  to  an  individual  or  individuals. 
The  term  derived  this  meanmg  from  the  fact  that  the  sovereign 
in  making  such  grant  issued  'Metters  patent,"  that  is,  an  open 
or  public  instrument,  bearing  the  great  seal,  in  which  the  right 
or  privilege  granted  was  set  out.  Titles  of  nobility  were  thus 
conferred  as  well  as  estates,  corporate  privileges,  the  exclusive 
right  to  carry  on  a  particular  trade  or  deal  in  a  particular  com- 
modity, and  the  like.  In  this  country  the  instrument  by  which 
the  government  conveys  title  to  land  to  a  purchaser  is  still 
called  a  patent.  It  would  be  proper  to  speak  of  the  grant  of 
the  exclusive  privilege  to  manufacture  an  invented  article,  or  to 
make  use  of  a  valuable  discovery  as  a  patent,  but  in  common 
usage  the  term,  as  employed  with  relation  to  inventions  and 
discoveries,  signifies  the  privilege  itself  rather  than  the  grant  of 
the  privilege,  and  is,  in  ordinary  parlance,  frequently  used  to 
designate  the  invention  or  discovery,  or  even  the  manufactured 


§  I02]  Copyrights  and  Patents.  179 

article  or  other  thing  manufactured  or  used  under  or  in  pursu- 
ance of  such  privilege. 

In  enacting  the  patent  laws  under  the  authority  of  the  con- 
stitution to  promote  the  progress  of  science  and  useful  arts, 
Congress  has  but  followed  the  custom  of  other  governments. 
In  all  civilized  countries  there  are  now  some  such  provisions 
for  the  promotion  of  invention  and  discovery  in  the  useful  arts. 
According  to  the  method  provided  for  by  Congress,  the  dis- 
coverer of  a  useful  invention  or  process  makes  application  to 
the  patent  office,  which  is  a  branch  of  the  Interior  Department 
of  the  government,  for  a  patent,  that  is,  for  the  exclusive  privi- 
lege of  using  and  transferring  to  others  the  right  to  use  his 
invention  or  discovery.  The  proper  officers  of  the  department 
investigate  his  claim,  and  upon  becoming  satisfied  that  his  in- 
vention is  new  and  useful,  letters  patent  are  issued  to  him 
granting  such  exclusive  privilege.  These  letters  are,  however, 
oviXy  prima  facie  evidence  that  he  is  entitled  to  a  patent,  and 
the  question  whether  the  invention  or  discovery  is  such  as 
entitles  him  to  an  exclusive  privilege  with  reference  thereto 
under  the  laws  of  Congress,  is  ultimately  to  be  determined  by 
the  courts  in  an  action  brought  by  or  against  him  for  infringe- 
ment on  the  part  of  some  one  making  a  conflicting  claim,  or  by 
the  United  States  against  him  to  determine  the  validity  of  his 
claim.  In  short,  the  right  granted  is  treated  as  a  property 
right  to  be  determined  and  protected  in  the  courts. 

The  power  to  authorize  the  granting  of  exclusive  privileges 
of  using,  manufacturing,  and  selling  an  invention  or  discovery 
can  be  granted  only  by  the  federal  government.  The  states' 
cannot  exercise  such  power,  for  in  doing  so  they  would  neces- 
sarily interfere  with  the  authority  of  Congress.  But  a  patent 
right  like  any  other  property  is  owned  and  held  subject  to  law, 
and  the  states  may  make  such  regulations  with  reference  thereto 
as  they  see  fit,  so  long  as  such  regulations  do  not  directly  or 
unreasonably  interfere  with  the  privileges  acquired  under  the 
patent  laws.  (See  Patterson  v.  Kentucky.)  Thus  the  state,  in 
the  exercise  of  its  police  power,  might  prohibit  the  sale  of  toy 
pistols  to  children,  even  though  the  pistols  were  manufactured 


t8o  Other  Powers  of  Congress.         [§102 

under  a  patent;  and  it  has  been  said  that  a  state  may  by- 
statute  regulate  the  negotiabihty  of  notes  given  for  patent 
rights.      (See  Her  die  v.  Roessler.) 

A  copyright  is  the  exclusive  privilege  of  publishing  or 
copying  an  original  writing  f"'  vjomposition  ( Wheaton  v. 
Peters),  The  statutes  passed  ^y  Congress  on  the  subject  pro- 
vide that  the  author  or  composer  shall  file  with  the  librarian 
of  Congress  a  printed  copy  of  the  title  of  the  book,  map, 
chart,  etc.,  or  a  description  of  the  painting,  etc.,  and  at  the 
time  of  publication,  deliver  to  the  librarian  two  copies  of  the 
book  or  other  publication,  or  in  the  case  of  a  painting  a  pho- 
tograph of  the  same,  and  announce  by  printing  on  the  title- 
page  or  page  following  of  every  copy  the  fact  and  date  of 
the  copyright  claimed.  A  copyright  differs  in  at  least  one 
important  feature  from  a  patent  right  in  that  in  the  case  of 
a  patent  the  letters  issued  constitute  prima  facie  evidence  of 
the  privilege,  while  in  case  of  a  copyright  there  is  no  formal 
document,  but  the  author  or  other  person  claiming  the  right 
may  assert  it  in  the  courts,  proving  the  facts  necessary  to 
entitle  him  to  such  privilege  as  provided  by  the  statute.  Like 
the  patent  laws,  the  copyright  laws  are  modelled  after  those 
which  had  previously  been  in  existence  in  England  and  other 
countries.  Exclusive  privileges  to  authors  have  been  recog- 
nized in  all  civilized  countries,  and  recently  provisions  have 
been  made  by  Congress  for  an  international  copyright,  so  that 
a  book  copyrighted  in  one  country  cannot  be  published  in 
another  except  under  the  authority  of  the  owner  of  the  orig- 
inal copyright.  Without  a  copyright,  the  writer  or  composer 
of  an  original  literary  or  musical  or  artistic  production  may 
retain  the  exclusive  use  and  enjoyment  of  it ;  but  he  cannot 
publish  it  without  giving  to  every  one  the  general  right  to  make 
such  use  of  it  as  he  sees  fit,  including  republication,  unless 
he  secures  at  the  time  of  such  publication  an  exclusive  privilege 
under  the  copyright  laws. 

No  express  authority  is  given  to  Congress  with  reference  to 
securing  to  manufacturers  and  dealers  the  exclusive  use  of  trade- 
marks.    It  was  attempted  to  provide  for  such  exclusive  use 


§  I04]  Weights.  —  Post-Offices.  1 8 1 

under  the  copyright  law,  but  it  was  held  by  the  Supreme  Court 
of  the  United  States  in  the  Trade-Mark  Cases  that  Congress 
could  not  provide  for  the  copyrighting  of  trade-marks.  Under 
the  authority  to  regulate  interstate  and  foreign  commerce, 
Congress  has,  however,  authorized  the  registration  of  trade- 
marks on  goods  destined  for  interstate  or  export  trade,  and 
interference  with  or  infringement  upon  the  lawful  use  of  a 
trade- mark  is  illegal. 

103.    "Weights  and  Measures. 

In  connection  with  the  power  to  coin  money  and  regulate 
the  value  thereof,  Congress  is  expressly  authorized  to  fix  the 
standard  of  weights  and  measures  (Const.  Art.  I,  §  8,  ^  5). 
But  this  power  has  never  been  exercised  by  Congress.  Con- 
gress has  indeed  (1866)  authorized  the  use  of  the  metric 
system,  but  there  is  no  requirement  of  its  use.  Until  there  is 
some  further  federal  legislation  on  the  subject,  the  power  to 
establish  standards  of  weight  and  measure  is  in  the  states  acting 
each  for  itself.  In  the  absence  of  any  state  statute,  the  com- 
mon law  or  customary  standards  are  recognized.  In  many 
states  there  is  legislation  fixing  standards,  providing  penalties 
for  the  use  of  false  weights  and  measures,  and  determining 
how  many  pounds  of  different  commodities  and  substances  shall 
constitute  a  bushel,  the  size  of  various  fruit  boxes  and  packages, 
and  like  matters.  There  is  noticeable  and  very  inconvenient 
lack  of  uniformity  among  the  states  on  the  entire  subject,  but 
thus  far  no  steps  have  been  taken  by  Congress  to  establish 
uniformity  under  the  authority  which  has  been  given  to  it  in 
the  constitution. 

104.    Post-Offices  and  Post-Roads. 

The  power  "To  establish  post-offices  and  post-roads" 
(Const.  Art.  I,  §  8,  f  7)  has  been  fully  exercised  by  Congress 
in  creating  a  post-office  department  of  the  federal  government, 
under  which  the  transportation  of  mail  matter  is  generally  and 
economically  effected.  Very  few  questions  have  arisen  with 
reference  to  the  exercise  of  this  power,  and  there  has  never 


J 82  Other  Powers  of  Congress.         [§105 

been  any  conflict  in  that  respect  between  federal  and  state 
authority,  the  power  and  practice  of  the  United  States  to  con- 
trol the  whole  subject  being  fully  recognized.  Congress  may 
undoubtedly  make  railroads,  steamship  lines,  and  other  methods 
of  transporting  the  mails,  post-roads ;  and  thereby  bring  such 
means  of  conveyance  under  federal  control.  Indeed,  Congress 
might  no  doubt  go  further  than  it  has  already  gone  in  establish- 
ing and  controlling  lines  for  mail  and  telegraphic  communica- 
tion. As  railroad,  steamship,  and  telegraph  lines  are  almost 
universally  engaged  in  carrying  on  interstate  and  foreign  com- 
merce as  well  as  in  transporting  the  mails,  Congress  has  a  double 
power  of  regulation. 

One  important  question  has,  however,  arisen  as  to  the  extent 
to  which  Congress  may  authorize  the  exclusion  from  the  mails 
of  matter  which  is  deemed  injurious  to  the  public.  Under  the 
power  to  establish  post-offices  and  post-roads,  it  has  been  pro- 
vided that  obscene  matter,  advertisements  of  lotteries,  and 
communications  calculated  to  defraud  or  in  their  nature  libel- 
lous, may  be  excluded,  and  this  has  been  held  to  be  within  its 
power  {Ex  parte  Jackson),  the  discretion  to  determine  what 
matter  is  improper  being  left  to  the  post-office  department.  A 
question  may  well  arise  as  to  the  extent  to  which  this  discretion 
can  be  exercised.  So  long  as  the  matter  excluded  is  matter 
which  a  reasonable  public  policy  declares  to  be  improper,  there 
can  be  no  question ;  but  if  Congress  should  attempt  to  exclude 
from  the  mails  matter  which  is  essentially  proper  and  not  in- 
jurious, it  might  well  be  questioned  whether  the  restriction 
would  not  be  unlawful,  perhaps  under  the  general  requirement 
that  laws  should  be  uniform  in  their  operation,  and  that  all  per- 
sons are  entitled  to  the  equal  protection  of  the  laws.  It  is 
settled  (see  In  re  Rapier)  as  to  lottery  companies  that  even 
though  chartered  by  the  state  in  which  they  are  operated,  they 
may  be  excluded  from  United  States  postal  facilities.  (See  § 
216.) 

105.  Slavery  and  Peonage. 

The  federal  constitution   as  originally  adopted  recognized 
the  existence  of  human  slavery  in  providing  that  "  The  migra- 


§  I05]  Slavery  and  Peonage.  183 

tion  or  importation  of  such  persons  as  any  of  the  states  now 
existing  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  1808  "  (Const.  Art.  I,  §  9, 
%  i)  ;  and  further,  that  " No  person  held  to  service  or  labor 
in  one  state  under  the  laws  thereof,  escaping  into  another, 
shall  in  consequence  of  any  law  or  regulation  therein  be  dis- 
charged from  such  service  or  labor,  but  shall  be  delivered  up 
on  claim  of  the  party  to  whom  such  service  or  labor  may  be 
due"  (Const.  Art.  IV,  §  2,  1  3).  In  pursuance  of  the  latter 
of  these  provisions,  the  Fugitive  Slave  Laws  of  1793  and  1850 
were  passed,  authorizing  the  owners  of  slaves  to  pursue  and 
retake  them  in  another  state.  But  by  the  Thirteenth  Amend- 
ment, ratified  in  1865  by  the  legislatures  of  a  sufficient  number 
of  the  states  to  make  it  a  part  of  the  constitution,  slavery  and 
involuntary  servitude,  except  as  a  punishment  for  crime,  were 
abolished ;  and  since  the  adoption  of  that  amendment  slavery 
in  any  of  the  United  States  or  in  any  place  subject  to  the 
jurisdiction  of  the  United  States  has  ceased  to  exist  as  an  insti- 
tution recognized  by  law,  and  the  questions  which  had  been 
previously  discussed  relating  to  slavery  have  ceased  to  be  of 
any  practical  importance. 

Soon  after  the  adoption  of  the  Thirteenth  Amendment, 
evidently  under  the  supposed  authority  given  by  the  second 
section  of  that  amendment,  Congress  passed  a  statute  (1867) 
abolishing  and  prohibiting  the  holding  of  any  person  to  ser- 
vice or  labor  under  the  system  known  as  *'  peonage  "  within 
any  territory  or  state.  As  express  reference  is  made  in  the 
act  to  the  territory  of  New  Mexico,  although  the  provisions  of 
the  statute  are  not  limited  to  that  territory,  it  is  evident  that 
the  purpose  was  to  forbid  the  perpetuation  of  the  system  of 
involuntary  service  which  had  existed  in  that  territory  since  its 
acquisition  from  Mexico.  But  the  statute  is  applicable  within 
the  states  as  well  as  the  territories,  atid  is  intended  to  reach 
the  case  of  any  one  who  holds  another  in  peonage,  notwith- 
standing he  may  be  claiming  the  right  to  do  so  under  state 
law  or  municipal  ordinance.      {Clyatt  v.  United  States,) 


184  Other  Powers  of  Congress.  [§  107 

106.  Government  of  the  District  of  Columbia. 

Congress  is  given  power  "  To  exercise  exclusive  legislation  in 
all  cases  whatsoever  over  such  district  (not  exceeding  ten  miles 
square)  as  may  by  cession  of  particular  states  and  the  accept- 
ance of  Congress  become  the  seat  of  government  of  the 
United  States"  (Art.  I,  §  8,  ^  17).  In  pursuance  of  this  pro- 
vision and  under  the  authority  of  Congress,  Maryland  and 
Virginia  in  1790  ceded  to  the  United  States  portions  of  their 
territory  which  were  set  apart  as  the  seat  of  the  federal  gov- 
ernment. Subsequently  the  portion  of  the  district  which  had 
been  ceded  by  Virginia  was  re-ceded  to  that  state,  and  the 
district  now  comprises  only  the  territory  acquired  from  Mary- 
land. Within  this  district  the  exclusive  power  of  legislation 
for  all  purposes  is  in  Congress,  and  although  Congress  in  1871 
undertook  to  establish  a  government  for  the  district  with 
legislative  powers,  and  the  government  thus  established  con- 
tinued in  operation  until  1874,  it  was  seriously  questioned 
whether  the  legislation  enacted  by  it  was  valid.  Indeed,  in  the 
case  of  Roach  v.  Van  Riswick,  decided  by  the  Supreme  Court 
of  the  District  of  Columbia  in  1879,  the  conclusion  was  reached 
that  all  the  legislation  of  the  government  thus  established  was 
without  legal  authority. 

However,  it  is  well  settled  that  Congress  may  create  munic- 
ipal corporations  within  territory  which  is  subject  to  its  exclu- 
sive jurisdiction,  and  by  the  legislation  of  Congress  now  in 
force  on  the  subject,  the  District  is  a  public  corporation,  hav- 
ing such  authority  as  is  usually  conferred  upon  such  corpora- 
tions (^Metropolitan  Railroad  Co.  v.  District  of  Columbia^. 
The  District  is  not  a  state  of  the  Union,  and  those  who  per- 
manently reside  within  it  are  not  citizens  of  any  state,  although 
they  are  citizens  of  the  United  States  (^Hepburn  v.  Ellzey) . 

107.  Legislation  as  to  Places  Ceded  to  the  Federal 
Government. 

By  the  constitutional  provision  referred  to  in  the  preceding 
section.  Congress  is  authorized  also  to  exercise  exclusive  legis- 


§  I07]  Special  Federal  Territory.  185 

lation  "  over  all  places  purchased  by  the  consent  of  the  legisla- 
ture of  the  state  in  which  the  same  shall  be  for  the  erection 
of  forts,  magazines,  arsenals,  dock  yards,  and  other  needful 
buildings."  Territory  ceded  to  the  United  States  under  this 
provision  ceases  to  be  territory  of  the  state,  and  is  no  longer 
subject  to  the  jurisdiction  of  the  state  by  which  it  is  thus 
ceded.  The  grant  to  the  United  States  of  the  exclusive  power 
of  legislation  with  reference  to  such  territory  excludes  it  and 
the  persons  permanently  residing  therein  from  the  jurisdiction 
of  the  state,  and  as  a  consequence  no  state  can  tax  property 
which  is  thus  situated,  nor  punish  crimes  committed  within  such 
territory ;  for  the  persons  therein  permanently  residing  are  not 
citizens  of  any  state.  It  has  been  held,  however  {^Ft.  Leaven- 
worth Railroad  Co.  v.  Lowe'),  that  in  ceding  such  territory 
the  state  may  reserve  the  power  to  tax  property  located  there, 
and  also  the  right  to  serve  process  of  its  courts  on  persons 
found  therein.  Such  a  reservation  of  power  has  been  recog- 
nized by  the  United  States  as  proper,  and  it  is  expedient,  for 
otherwise  the  forts,  navy-yards,  and  public  buildings  of  the 
United  States  might  be  resorted  to  by  those  seeking  to  evade 
the  state  laws. 

It  is  to  be  borne  in  mind  that  it  is  only  with  reference  to 
territory  thus  voluntarily  ceded  that  the  state  loses  its  jurisdic- 
tion. The  United  States  may,  like  any  other  sovereign  power, 
acquire  the  ownership  of  property  by  purchase,  or  by  the 
exercise  of  the  power  of  eminent  domain  {Kohl  v.  United 
States).  But  it  acquires  exclusive  jurisdiction  over  property 
thus  purchased  or  condemned  only  by  voluntary  cession  from 
the  state.  For  instance,  if  at  the  time  of  the  admission  of  a 
state  to  the  Union,  the  United  States  has  forts  or  public  build- 
ings located  within  the  limits  of  such  state  as  admitted,  the 
state  acquires  jurisdiction  with  reference  thereto  unless  in  the 
act  of  admission  or  by  subsequent  voluntary  action  of  the  state 
exclusive  jurisdiction  is  reserved  or  ceded  to  the  United  States. 
As  has  already  been  indicated  in  the  chapter  in  which  the 
power  of  the  United  States  to  punish  crimes  is  considered 
(see  above,  §  56),  Congress  has  legislated  for  the  punishment 


1 86  Other  Powers  of  Congress.         [§  107 

of  crimes  committed  in  the  District  of  Columbia  and  in  other 
ceded  districts,  and  like  legislative  power  with  reference  to 
such  districts  may  be  and  is  exercised  by  Congress  in  other 
matters. 


CHAPTER   XVII. 
WAR   POWERS. 

108.    References. 

J.  Story,  Constitution,  chs.  xxi,  xxii ;  T.  M.  Cooley,  Constitutional  Laiv, 
ch.  iv,  §  12  ;  H.  C.  Black,  Constitutional  Law  (2d  ed.),  pp.  220-224  ; 
J.  I.  C.  Hare,  Co?istitutional  Law,  Lects.  xli-xliv  ;  J.  R.  Tucker,  Consti- 
tution, pp.  576-597  ;  J.N.  Pomeroy,  Constitutional  Law,  pp.  281-288  ; 
G.  T.  Curtis,  Constitutional  History,  I,  527-531  ;  The  Federalist,  Nos. 
23-26,  29,  41  ;  A.  B.  Hart,  Actual  Government  (Amer.  Citizen  Series), 
ch.  XXV ;  A.  V.  Dicey,  Law  of  the  Constitutio?i  {4th  ed.),  271,  289;  J.  B. 
Thayer,  Cases  on  Constitutional  Law,  2274-2279;  Maj-tin  v.  Mott  (1827, 12 
Wheaton,  19;  7  Curtis'  Decisions,  10;  McClain's  Cases,  518;  Thayer's 
Cases,  2290)  ;  The  Prize  Cases  (1862,  2  Black,  635  ;  McClain's  Cases, 
515  ;  Thayer's  Cases,  2339,  and  note)  ;  Ex  parte  Milligan  ( 1867, 4  Wallace, 
2;  Thayer's  Cases,  2376)  ;  Ex  parte  Merryman  (1861,  Taney's  Reports, 
246;  Thayer's  Cases,  2361);  Dynes  v.  Hoover  (1857,  20  Howard,  65; 
Thayer's  Cases,  2333) ;  United  States  v.  Clark  (1887,  31  Federal  Rep. 
710;  Thayer's  Cases,  2413). 

109.    State  Power  as  to  War. 

Among  the  express  limitations  on  the  powers  of  the  state 
which  were  incorporated  into  the  federal  constitution  in  1787, 
were  prohibitions  against  entering  into  any  treaty,  alliance,  or 
confederation,  granting  letters  of  marque  and  reprisal,  keeping 
troops  or  ships  of  war  in  time  of  peace,  entering  into  any 
agreement  or  compact  with  another  state  or  with  a  foreign 
power,  or  engaging  in  war  unless  actually  invaded,  or  in  such 
imminent  danger  as  will  not  admit  of  delay  (Art.  I,  §  10). 
The  object  of  the  prohibition  as  to  treaties,  alliances,  or 
confederations  among  themselves,  or  with  a  foreign  power, 
was  no  doubt  to  prevent  the  states  from  having  any  relations 
with  each  other  as  independent  powers  other  than  expressly 

.87 


1 88  War  Powers.  [§  no 

authorized  by  the  constitution ;  and  also  to  prevent  any 
attempt  on  the  part  of  one  state  to  obtain  an  advantage 
over  another  by  arrangements,  commercial  or  otherwise,  with 
foreign  countries.  The  broad  principle  was  established  that 
as  to  the  relations  of  the  states  among  themselves  and  as 
to  the  relations  of  the  people  of  the  United  States  to  those 
of  foreign  countries,  the  federal  government  should  be  supreme 
and  its  power  exclusive.  But  evidently  an  important  con- 
sideration was  to  avoid  hostility  between  the  states,  and 
alliances  with  foreign  governments  which  might  involve  offensive 
or  defensive  military  operations,  and  this  idea  is  carried  out 
in  the  prohibition  as  to  maintaining  troops  or  ships  of  war  and 
engaging  in  war. 

The  war  power,  in  a  broad  "sense,  is  reserved  to  the  federal 
government.  But  a  state  may,  in  case  of  sudden  emergency, 
repel  invasion,  and  in  doing  so  it  may  perhaps  carry  on  mili- 
tary operations  outside  its  own  boundaries,  such  operations 
being  limited,  however,  to  the  purpose  of  preventing  an  im- 
minent invasion. 


110.    State  Militia. 

The  right  of  the  state  to  maintain  an  organized  militia  is, 
however,  expressly  recognized  by  the  federal  constitution 
(Amend.  II).  The  militia  of  the  state  consists  of  those 
persons  who  under  the  law  are  liable  to  perform  military  duty ; 
and  such  persons  may  be  enrolled  under  officers  so  as  to  be 
ready  for  service  when  called  upon.  The  militia  may  be 
employed  by  the  state  in  maintaining  internal  tranquillity  and 
in  enforcing  obedience  to  state  law,  but  cannot  under  state 
authority  be  sent  outside  the  limits  of  the  state  unless,  as  sug- 
gested in  the  preceding  paragraph,  to  prevent  an  imminent 
invasion.  In  the  various  states  there  are  statutory  provisions 
as  to  the  organization  and  discipline  of  the  militia ;  and  so 
long  as  the  state  does  not  attempt  to  make  use  of  this  power 
for  purposes  forbidden  by  the  constitution,  the  matter  is  left  to 
state  control. 


§112]  State  and  Federal.  189 

111.   Federal  Power  as  to  State  Militia. 

Congress  is  authorized  "To  provide  for  calling  forth  the 
militia  to  execute  the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions,"  and  "  To  provide  for  organizing,  arming, 
and  disciplining  the  militia,  and  for  governing  such  part  of 
them  as  may  be  employed  in  the  service  of  the  United  States, 
reserving  to  the  states  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  mihtia  according  to  the 
discipline  prescribed  by  Congress  "  (Const.  Art.  I,  §  8,  f^  15, 
16).  It  is  evident  that  the  militia  here  referred  to  is  the 
militia  of  each  state,  and  that  when  thus  called  out  for  federal 
purposes,  the  militia  of  a  state  becomes  a  military  force  of 
the  federal  government.  The  method  of  calling  out  the  militia 
is  prescribed  by  federal  statute,  and  the  command  over  them, 
as  over  other  military  forces  of  the  United  States,  is  vested  in 
the  president  (Art.  II,  §  2).  His  exercise  of  this  power  will 
be  considered  in  the  chapter  relating  to  his  war  powers.  (See 
below,  §  131.) 

112.     The  Army  and  Navy. 

Congress  is  given  express  authority  "  To  raise  and  support 
armies  "  with  the  provision  that  "  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years  "  and  "  To 
provide  and  maintain  a  navy"  (Const.  Art.  I,  §  S,^%  12,  13). 
The  reason  for  the  provision  that  appropriations  for  the  sup- 
port of  the  army  must  be  for  a  limited  period  only  has  been 
already  suggested.  (See  above,  §  69.)  The  armies  may  con- 
sist of  the  state  militia  called  into  the  federal  service  ;  but  Con- 
gress is  not  limited  to  this  method  of  raising  armies,  and  may 
provide  for  the  enlistment  of  regular  federal  troops,  or  if  deemed 
necessary,  for  compelling  service  by  conscription,  and  the  calling 
out  of  the  state  militia  as  such  has  been  found  to  be  inexpedient 
save  for  temporary  purposes.  The  United  States  maintains  a 
regular  army,  and  in  time  of  war  provides  for  additional  forces 
by  the  enlistment  of  volunteer  regiments  which  may  be  enlisted 
and  recruited  in  the  various  states  as  Congress  shall  provide. 


1 90  War  Powers.  [§  113 

Regiments  of  state  militia  may  be  enlisted  as  volunteer  regi- 
ments. There  is  no  practical  distinction  between  the  militia 
of  the  various  states  called  into  the  service  of  the  United  States, 
and  the  other  military  forces  of  the  United  States,  save  as  to 
their  original  organization  and  the  appointment  of  subordinate 
officers.  As  the  states  are  prohibited  from  having  ships  of 
war,  the  federal  navy  is  composed  entirely  of  vessels  belonging 
to,  or  for  the  time  being  employed  in  the  service  of  the  United 
States  under  its  authority.  The  powers  of  the  president  as  to 
the  army  and  navy  will  be  discussed  in  a  subsequent  chapter. 
(See  below,  §  130.) 

The  power  to  grant  letters  of  marque  and  reprisal  (Const. 
Art.  I,  §  8,  ^  1 1 )  involves  the  granting  to  private  vessels,  sail- 
ing under  the  flag  of  the  United  States,  the  authority  to  cap- 
ture enemies'  vessels  and  other  property  upon  the  high  seas. 
Indeed,  reprisals  may  be  authorized  without  the  existence  of  a 
state  of  war,  and  for  the  purpose  of  securing  from  a  foreign 
country  or  its  citizens,  redress  for  grievances  ;  but  the  making 
of  reprisals  is  an  initial  ^tep  towards  the  commencement  of 
hostilities,  and  may  therefore  be  properly  regarded  as  incident 
to  the  war-making  power.  Private  vessels  to  which  letters  of 
marque  and  reprisal  have  been  granted,  usually  denominated 
privateers,  act  under  the  authority  of  the  government  granting 
such  letters,  but  are  not,  properly  speaking,  a  part  of  its  navy. 

113.  Power  to  Declare  War. 

Congress  is  expressly  given  the  power  to  declare  war  (Const. 
Art.  I,  §  8,  ^  11),  and  this  grant  of  power  is  exclusive.  The 
executive  department,  although  it  is  charged  with  the  foreign 
relations  of  the  government,  cannot  declare  war,  but  a  state  of 
war  may  exist  without  being  declared,  and  the  president  may 
employ  the  military  and  naval  forces  of  the  United  States  in 
repelling  invasion  before  any  declaration  of  war  has  been  made 
by  Congress,  or  in  suppressing  insurrection.  One  of  the  inci- 
dents of  a  state  of  war  is  the  seizure  of  the  enemy's  property 
and  vessels,  and  it  has  been  held  that  the  seizure  of  vessels  of 


§  114]      Declaration  and  Military  Law.         191 

a  hostile  power,  as  prizes  of  war,  may  lawfully  take  place 
although  war  has  not  been  declared.  (See  Prize  Cases.) 
However,  as  the  money  for  the  support  of  the  army  and  navy 
must  be  appropriated  by  Congress,  there  is  no  practical  danger 
that  this  country  will  be  engaged  iji  war  for  any  considerable 
length  of  time  without  a  recognition  by  Congress  of  the  ex- 
istence of  war. 

114.    Military  Law. 

The  express  power  given  to  Congress  "  To  make  rules 
for  the  government  and  regulation  of  the  land  and  naval 
forces"  (Const.  Art.  I,  §  8,  ^  14)  has  been  exercised  by  the 
adoption  of  a  code  of  military  law  for  the  government  of  the 
officers  and  men  composing  the  land  and  naval  forces.  This 
code  is  in  force  in  time  of  peace  as  well  as  during  war,  but  it 
applies  exclusively  to  the  persons  who  constitute  the  land  and 
naval  forces,  that  is,  the  soldiers  and  sailors,  including  in 
those  terms  both  officers  and  men.  By  this  military  law 
their  conduct  is  regulated  and  punishments  for  its  violation 
are  provided.  Offenders  against  the  military  law  are  triable 
before  a  court-martial  composed  of  officers  of  the  army  or 
navy,  as  the  case  may  be,  under  the  direction  of  a  judge 
advocate ;  and  the  punishment  of  the  offender  found  guilty  is 
administered  under  military  or  naval  authority.  The  different 
forms  of  punishment  provided  for  include  death,  imprison- 
ment, fine,  degradation  in  rank,  dismissal  from  the  service, 
reprimand,  and  other  penalties. 

It  is  to  be  noticed  that  a  court-martial  has  jurisdiction  only 
over  persons  who  are  enrolled  in  the  military  or  naval  forces, 
and  administers  only  the  military  law.  When  a  state  of  war 
exists  and  the  operation  of  the  ordinary  courts  within  any 
portion  of  territory  which  is  subjected  to  military  occupation 
is  thereby  suspended,  the  military  power  may  provide  tem- 
porarily for  military  courts  or  commissions  administering  law 
for  the  time  being  among  persons  within  such  territory  who 
are  not  part  of  the  military  forces,  but  these  military  courts  or 
commissions   are    not    courts-martial    and    they   can    exercise 


192  War  Powers.  [§  "5 

jurisdiction  within  the  limits  of  the  United  States  only  where 
the  ordinary  operations  of  the  courts  have  been  suspended  by 
declaration  of  martial  law.  While  declaration  of  martial  law 
is  not  expressly  provided  for  in  the  constitution,  it  is  regarded 
as  authorized  by  the  provision  for  the  suspension  of  the  privi- 
lege oi habeas  corpus  (Const.  Art.  I,  §  9,  *[[  2). 

115.    Subordination  of  the  Military  to  the   Civil  Authority. 

While  the  military  power  must  necessarily  be  absolute  for 
the  time  being,  and  beyond  the  control  of  the  civil  authorities 
so  far  as  it  is  lawfully  exercised,  yet  it  is  regarded  as  ex- 
ceptional and,  so  far  as  it  aifects  persons  not  in  the  military  or 
naval  service,  temporary.  The  civil  law,  by  which  term  is 
here  meant  the  general  law  both  civil  and  criminal  admin- 
istered by  the  ordinary  courts,  is  the  law  which  governs  indi- 
viduals in  all  cases  except  as  they  may  be  outside  of  the  civil 
law  by  reason  of  being  in  the  army  or  navy,  or  of  being  in  a 
region  where  martial  law  has  been  declared  and  the  ordinary 
operations  of  the  courts  suspended.  The  civil  courts  cannot 
interfere  with  the  proceedings  of  courts-martial  so  far  as  they 
have  jurisdiction  {Dynes  v.  Hoover)  ;  but,  on  the  other  hand, 
courts-martial  cannot  exclude  the  general  jurisdiction  of  the 
civil  courts.  Even  persons  who  are  in  the  military  or  naval 
service  and  are  therefore  subject  to  the  military  law  are  not 
thereby  exempted  from  obedience  to  the  civil  law,  and  may  be 
required  to  answer  in  the  ordinary  courts  for  their  acts  in 
violation  of  the  general  law.  Thus  a  soldier  may  be  tried  in 
the  regular  courts  for  murder  or  other  crime  committed  by 
him,  even  though  he  may  have  been  already  tried  therefor 
as  a  violation  of  the  military  law  by  a  court-martial.  Whether 
a  soldier  is  to  be  held  individually  responsible  for  acts  done 
under  orders  or  authority  of  his  superior  officers  or  the  general 
military  power,  is  a  wholly  different  question.  He  may  be 
justified  for  thus  acting  if  the  occasion  is  one  for  the  exercise 
of  military  authority,  but  his  justification  is  to  be  determined 
when  he  is  called  upon  to  account  for  his  acts  in  the  regular 
courts.     The  general  supremacy  of  the  civil  over  the  military 


§115]      Subordination  of  the  Military.         193 

authority  is  fully  recognized  in  England  and  the  United  States, 
and  is  one  of  the  essential  features  of  our  constitutional  sys- 
tem. The  maintenance  by  the  king  of  standing  armies  in 
the  colonies  in  time  of  peace  and  his  subordination  of  the 
civil  to  the  military  power  are  among  the  grievances  enumerated 
in  the  Declaration  of  Independence. 


»3 


CHAPTER   XVIII. 
IMPLIED   POWERS   OF  THE   FEDERAL  GOVERNMENT. 

116.    References. 

J.  Story,  Constitution,  §§  433-435.  1 236-1 294, 1329,  1330;  T.  M.  Cooley, 
Constitutional  Latu,  ch,  iv,  §  15;  H.  C.  Black,  Constitutional  Laru,  §§  105, 
106;  McCulloch  V.  Maryland  (1819,  4  Wheaton,  316 ;  4  Curtis'  Decisions, 
415;  McClain's  Cases,  i;  Thayer's  Cases,  1340;  Marshall's  Decisions, 
Dillon's  ed.  252);  Gibbons  v.  Ogden  (1824,  9  Wheaton,  i  ;  6  Curtis' 
Decisions,  i^  McClain's  Cases,  235;  Thayer's  Cases,  1799;  Marshall's 
Decisions,  Dillon's  ed.,  421);  Legal  Tender  Case  (1884,  no  U.  S.  421; 
McClain's  Cases,  442);  Andersoti  v.  Dunn  (1821,  6  Wheaton,  204;  5 
Curtis'  Decisions,  61  ;  McClain's  Cases,  548) ;  Kilbicrn  v.  Thompson 
(1880,  103  U.  S.  168;  McClain's  Cases,  553);  Ex  parte  Curtis  (1882,  106 
U.  S.  371  ;  McClain's  Cases,  554);  Loganv.  United  States  {i?)()2,  144  U.  S. 
263  ;  McClain's  Cases,  557  ;  Thayer's  Cases,  343)  ;  The  Chinese  Exclusion 
Case,  Chae  Chan  Ping  v.  United  States  (1889,  130  U.  S.  581 ;  McClain's 
Cases,  562);  Fong  Yue  Ting  v.  United  States  (1893,  M9  U.  S.  698; 
McClain's  Cases,  567  ;  Thayer's  Cases,  374). 

117.    Implied  Powers  Expressly  Given. 

As  has  already  been  indicated  (see  above,  §  18),  the  federal 
government,  although  a  government  of  limited  and  delegated 
rather  than  general  powers,  has  such  implied  powers  as  may 
be  necessary  to  the  reasonable  exercise  of  the  powers  granted. 
This  would  be  true  without  any  express  provision,  but  it  is 
expressly  declared  that  Congress  shall  have  power  "  To  make 
all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution"  the  powers  previously  enumerated,  and  "all  other 
powers  vested  by  this  constitution  in  the  government  of  the 
United  States  or  in  any  department  or  officer  thereof"  (Const. 
An.  I,  §  8,  f  18).  This  clause  of  the  constitution  has  two 
aspects :  it  recognizes  the  existence  of  implied  powers,  and  it 

194 


§  117]  Implied  Powers  Expressly  Given.      195 

authorizes  Congress  to  regulate  the  exercise  of  such  powers  by 
the  departments  or  officers  of  the  United  States. 

It  would  be  impossible  to  enumerate  in  an  exhaustive  way 
the  classes  of  statutory  provisions  which  have  been  enacted  by 
Congress  in  the  exercise  of  its  implied  powers,  and  it  would  be 
equally  impossible  to  forecast  the  legislation  which  might  be 
proper  under  implied  powers  not,  as  yet,  recognized  or  acted 
upon.  A  few  examples  of  the  exercise  of  implied  powers  will 
be  sufficient  for  present  purposes. 

Under  the  general  power  to  raise  revenue  and  carry  on 
the  fiscal  operations  of  the  government,  Congress  passed  two 
acts  incorporating  a  United  States  bank  (see  McCulloch  v. 
Maryland),  and  more  recently  has  established  a  system  of 
national  banks.  Under  the  power  to  regulate  foreign  and 
interstate  commerce.  Congress  has  passed  a  variety  of  stat- 
utes relating  to  navigation,  immigration,  and  similar  sub- 
jects. (See  Gibbons,  v.  Ogden.)  Under  the  power  to  borrow 
money  and  the  general  power  implied  from  various  provisions 
of  the  constitution  to  regulate  the  currency.  Congress  has  made 
treasury  notes  a  legal  tender  in  the  payment  of  debts  (^Legal 
Tender  Case).  Under  the  power  given  to  each  House  of 
Congress  to  determine  the  rules  of  its  proceedings  and  to  act 
as  a  co-ordinate  branch  of  the  legislative  department,  punish- 
ment of  contempts  of  the  authority  of  either  House  may  be 
provided  for,  and  such  punishment  may  be  inflicted  on  per- 
sons who  are  not  members  {Anderson  v.  Dunn  and  Kilbourn 
V.  Thompson).  Congress  may  regulate  the  methods  of  ap- 
pointment of  officers  and  employes  of  the  United  States,  and 
prescribe  their  qualifications  so  far  as  such  qualifications  are 
not  prescribed  in  the  constitution  itself,  and  it  may  prohibit 
and  punish  misconduct  on  the  part  of  such  officers  {Ex  parte 
Curtis).  Under  the  power  to  regulate  commerce  and  in  the 
exercise  of  the  powers  incident  to  the  sovereignty  which  belongs 
to  the  government  of  the  United  States,  Congress  has  provided 
for  the  exclusion  of  the  Chinese  (^Chinese  Exclusion  Case  and 
Fong  Yue  Tingw.  United  States), 


196  Implied  Powers.  [§  nS 

118.    Restrictions  on  the  Exercise  of  Power  by  Congress. 

What  has  been  said  in  a  previous  section  (above,  §  20)  as 
to  express  and  implied  restrictions  on  the  powers  of  the  several 
departments  of  the  federal  and  state  governments,  is  especially 
applicable  to  the  powers  of  Congress.  It  cannot  exercise  any 
power  not  given  to  it  by  express  grant  or  reasonably  implied 
from  the  powers  which  are  granted.  Furthermore,  there  are 
express  limitations  on  its  power  such  as  those  enumerated  in 
Article  I,  §  9,  of  the  constitution  which,  although  not  directly 
stated  to  be  limitations  on  congressional  power,  are  evidently 
intended  to  apply  especially  to  Congress,  as  they  are  included 
in  the  article  of  the  constitution  relating  to  the  legislative  de- 
partment. But  these  limitations  are  all  discussed  in  connec- 
tion with  the  various  subjects  to  which  they  relate  and  need 
not  now  be  further  considered. 


Part    IV. 
Executive  Power. 


CHAPTER   XIX. 

GENERAL  NATURE   OF  EXECUTIVE   FUNCTIONS. 

119.    References. 

J.  I.  C.  Hare,  Constitutional  Law,  lect.  x;  J.  R.  Tucker,  Constitution  of 
the  United  States,  §§  98,  99;  The  Federalist,  Nos.  69-73;  James  Bryce, 
American  Conifnonwealth,  chs.  v,  vi,  xx,  xxi,  xli ;  J.  W.  Burgess,  Political 
Science  and  Constitutional  Law,  II,  185,  320;  J.  N.  Pomeroy,  Constitu- 
tional Law,  ch.  V ;  A.  B.  Hart,  Actual  Government  ( Amer.  Citizen  Series), 
ch.  viii. 

120.    Historical  View  as  to  the  Executive. 

Among  a  primitive  people,  not  yet  united  under  any  strong 
central  government,  and  recognizing  the  right  of  local  self- 
government  as  existing  in  small  divisions  or  bodies,  limited 
and  temporary  authority  only  is  conceded  to  any  one  official ; 
there  is  but  Httle  concentrated  executive  power.  Such  a  people 
were  the  Anglo-Saxons  during  the  early  period  of  their  existence 
in  England.  But  the  necessary  development  of  a  stronger 
central  government  will  be  effected  by  the  assertion  of  greater 
power  on  the  part  of  some  leader  or  ruler,  and  before  the 
Norman  Conquest  the  office  of  king  had  been  fully  established 
in  England,  though  the  king  was  not  looked  upon  by  any  means 
as  the  source  of  all  power  or  as  entitled  to  exercise  absolute 

197 


igS  Executive  Power.  [§  120 

power.  After  the  Norman  Conquest,  and  especially  after  the 
superiority  of  the  king  over  the  nobility  had  been  established, 
the  monarch,  although  never  recognized  as  the  repository  of 
absolute  authority,  was  regarded  as  ruling  by  divine  right,  and 
as  the  source  of  all  the  authority  exercised  by  the  general 
government.  He  made  the  laws,  after  consultation  with  his 
duly  appointed  counsellors,  and  even  after  Parliament  became 
fully  established,  he  framed  statutes  for  the  consideration  of 
Parliament.  In  course  of  time  the  importance  and  influence 
of  Parliament  had  so  far  increased,  especially  by  the  persistent 
assertion  on  its  part  of  the  right  to  regulkte  the  levying  of  taxes 
and  the  expenditure  of  money,  that  the  power  to  legislate  was 
fully  established  as  a  Parliamentary  power,  and  Parliament 
(king,  lords,  and  commons)  became  the  legislative  branch  of 
the  government,  whilst  the  monarch  was  recognized  as  the 
executive  branch. 

Until  1 715  the  king  still  participated  with  Parliament  in  the 
making  of  laws  inasmuch  as  he  could  veto  any  bill  sent  up  to 
him  by  the  two  Houses  ;  and  still  no  act  of  Parliament  becomes 
a  statute  until  it  has  received  the  royal  approval.  In  the 
relations  between  the  government  of  England  and  foreign 
governments,  he  was  the  sole  representative  of  the  nation. 
The  supreme  military  authority  was  in  him,  and  he  exercised 
the  function  of  enforcing  the  laws.  In  course  of  time  the 
judicial  authority  was  separated,  to  a  great  extent,  from  the 
person  of  the  sovereign,  but  it  was  exercised  by  judges 
appointed  by  the  sovereign,  and  the  judicial  branch  of  the 
government  was  recognized  as  deriving  its  authority  from  the 
executive. 

This  was  the  substantial  framework  of  the  English  constitu- 
tion at  the  time  the  colonies  asserted  their  independence,  and 
the  state  constitutions,  as  has  already  been  explained  (^supra, 
eh.  iv),  recognize  three  co-ordinate  departments  of  govern- 
ment, the  legislative,  the  executive,  and  the  judicial.  By  these 
constitutions,  and  in  general  by  all  state  constitutions  sub- 
sequently framed,  the  governor  as  the  head  of  the  executive 
department  is  the  head  of  the  state.     He  is  the  chief  adminis- 


§  i2o]  Historical  View.  199 

trative  officer  charged  in  a  general  way  with  the  enforcement 
of  the  laws ;  he  is  at  the  head  of  the  miUtary  establishment  of 
the  state ;  and  he  has  the  pardoning  power.  He  has  also  some 
functions  to  perform  in  connection  with  the  legislative  depart- 
ment. By  the  constitution  of  the  United  States,  which  was 
framed  in  general  analogy  to  the  state  constitutions  then  exist- 
ing, the  president  is  the  head  of  the  militjiry  and  naval  forces ; 
he  represents  the  national  government  in  its  relation  with 
foreign  governments ;  he  participates  in  legislation  by  exercis- 
ing the  power  of  approving  or  vetoing  bills  passed  by  Congress  ; 
and  he  is  vested  with  the  power  of  pardon  (Art.  II). 

It  appears,  therefore,  that  the  chief  executive,  whether  of  a 
state  or  of  the  federal  government,  exercises  a  variety  of  func- 
tions, which  must  be  separately  considered. 


CHAPTER   XX. 

ADMINISTRATIVE   FUNCTIONS;   APPOINTING  AND 
PARDONING   POWER. 

121.   References. 

Administration  and  Enforcement  :  A.  V.  Dicey,  Law  of  the  Con- 
stitution, chs.  V,  vi ;  Alexis  De  Tocqueville,  Democracy  in  America,  I,  ch. 
V ;  J.  I.  C.  Hare,  Constitutional  Law,  138-145;  J.  R.  Tucker,  Constitution, 
§  362 ;  J.  N.  Pomeroy,  Constitutional  Law,  §§  662-668  ;  A.  B.  Hart,  Actual 
Government  (Amer.  Citizen  Series),  §  252;  Marbury  \ .  Madison  (1803, 
I  Cranch,  137;  i  Curtis'  Decisions,  368 ;  McClain's  Cases,  815;  Thayer's 
Cases,  107  ;  Marshall's  Decisions,  Dillon's  ed.,  i) ;  In  re  Neagle  (1889, 
135  U.  S.  I ;  McClain's  Cases,  65 ;  Thayer's  Cases,  335) ;  In  re  Debs 
(1895,  158  U.  S.  564). 

Appointment  of  Officers:  J.  Story,  Constitution,  §§  1524-1529; 
J.  N.  Pomeroy,  Constitutional  Law,  §§642-661 ;  J.  R.  Tucker,  Constitution, 
§§  357~359J  T^^  Federalist,  Nos.  76,  77;  A.  B.  Hart,  Actual  Governmettt 
(Amer.  Citizen  Series),  §§  125,  130,  131  ;  United  States  v.  Germaine  (1878, 
99  U.  S.  508;  McClain's  Cases,  607) ;  Blake  v.  United  States  (1880,  103 
U.  S.  227  ;  McClain's  Cases,  610). 

Pardons:  J.  Story,  Constitution,  §§  1494-1504;  J.  R.  Tucker,  Consti- 
tution, §  352;  J.  N.  Pomeroy,  Constitutional  Law,  §§  682-696;  The  Fed- 
eralist, No.  74;  Ex  parte  Wells  (1855,  18  Howard,  307  ;  McClain's  Cases, 
569) ;  Cummingsv.  Missouri {\Z(£,  4  Wallace,  277 ;  Thayer's  Cases,  1446) ; 
Ex  parte  C'^r/a/z^  (1866,  4  Wallace,  333;  McClain's  Cases,  576;  Thay- 
er's Cases,  1453,  and  note). 

122.    Administration  and  Enforcement  of  Lavr. 

The  administrative  power  of  the  federal  or  a  state  govern- 
ment is  necessarily  vested  in  the  executive  department.  Our 
system  of  government  does  not,  however,  recognize  administra- 
tive law  as  superior  to  the  civil  law  administered  by  the  courts. 
Executive  officers,  even  the  highest,  are  subject  to  the  law. 
Although  the  chief  executive  cannot  be  directly  interfered 
with  by  the  courts  in  the  discharge  of  his  duties  (see  above, 
§  25),  he  is  liable,   in  both  civil  and  criminal  proceedings,  for 

200 


§  122]  Administration  and  Enforcement.      201 

breach  of  the  law  in  the  same  way  as  a  private  citizen ;  and 
subordinate  executive  officers  may  be  directly  controlled  by  the 
courts  as  to  the  discharge  of  their  duties.  It  must  be  understood, 
however,  that  where  a  discretion  is  given  to  an  executive  officer 
he  cannot  be  controlled  by  the  courts  in  the  exercise  of  his 
discretion,  although  he  may  be  compelled  to  act  where  it  is  his 
duty  to  act,  and  prevented  from  acting  where  he  has  no  right  to 
do  so  {Marbury  v.  Madison). 

In  speaking  of  the  division  of  power  among  the  three  depart- 
ments of  government,  it  is  often  said  that  the  peculiar  duty 
of  the  executive  department  is  to  enforce  the  laws  made  by 
the  legislative  department.  By  state  constitutions  it  is  usually 
provided  that  the  executive  shall  take  care  that  the  laws  are 
faithfully  executed  ;  and  there  is  such  a  provision  in  the  federal 
constitution  (Art.  II,  §  3).  It  is  also  provided  that  the  presi- 
dent shall  take  an  oath  to  faithfully  execute  his  office,  and  to 
the  best  of  his  ability  preserve,  protect,  and  defend  the  consti- 
tution of  the  United  States  (Const.  Art.  II,  §  i,  If  7).  The 
practical  execution  of  the  laws  rests,  however,  more  directly 
with  the  judiciary  than  with  the  executive  department.  It  is 
for  the  courts  to  determine  whether  a  law  has  been  violated  in 
a  particular  case,  and  what  the  redress  or  punishment  shall  be. 
If  the  authority  of  the  court  is  resisted,  then  it  is  the  function 
of  the  executive  department  to  employ  the  power  of  the  govern- 
ment, even  the  military  power,  if  necessary,  to  uphold  the  au- 
thority of  the  courts  and  carry  out  their  judgments ;  so  that  it 
is  proper  to  say,  in  a  general  sense,  that  the  ultimate  power  to 
enforce  the  laws  is  with  the  executive  (///  re  Neagle). 

The  question  has  been  mooted  whether  the  president  in  the 
enforcement  of  the  laws  may  take  into  account  their  constitu- 
tionality and  disregard  those  which  he  believes  to  be  unconsti- 
tutional. As  to  those  acts  which  are  purely  executive  and 
which  are  not  subject  to  review  by  the  courts,  it  is  plain  that 
the  president  must  act  on  his  own  judgment  and  responsi- 
bility ;  but  on  the  other  hand,  as  to  the  interpretation  of  the 
constitution  which  has  been  announced  by  the  judiciary  in  cases 
properly  coming  before  that  department,  he  should  acquiesce 


202  Administrative  Functions.  [§  123 

in  the  decisions  of  the  highest  judicial  tribunal.  President 
Lincoln  practically  disregarded  the  Dred  Scott  decision  in  the 
policy  of  his  administration  with  reference  to  slavery,  and  he 
was  no  doubt  justified  in  doing  so,  for  that  decision  had  not 
and  could  not  have  any  direct  bearing  on  the  duties  of  the  ex- 
ecutive department. 

In  the  enforcement  of  the  law  it  may  become  necessary  for  the 
president  to  use  the  military  power,  not  only  in  securing  obedi- 
ence to  the  decisions  of  the  courts,  but  also  in  preventing  inter- 
ference with  the  performance  of  governmental  functions  or  the 
carrying  on  of  governmental  operations.  For  instance,  if  the 
transportation  of  the  mails  or  the  carrying  on  of  interstate 
or  foreign  commerce  is  interfered  with,  he  may  undoubtedly 
employ  such  military  force  as  is  necessary  to  remove  such  inter- 
ference. (See  above,  §  93.)  The  executive  department  is  not 
bound  to  suspend  the  discharge  of  the  duties  with  which  it  is 
vested  until  by  judicial  proceedings  a  remedy  may  be  afforded. 
The  president  may  use  the  military  forces  of  the  United  States 
under  such  circumstances  without  being  called  upon  by  the 
legislature  or  governor  of  the  State  (/;/  re  Debs). 

123.  Appointment  of  OflBcers. 

In  many  of  the  states  the  principal  executive  officers  subordi- 
nate in  rank  to  the  chief  executive  are  chosen  by  popular  elec- 
tion. But  many  other  subordinate  officers  are  provided  for, 
usually  appointed  by  the  governor,  although  the  method  of 
selection  is  of  course  determined  by  the  constitutional  or  statu- 
tory provisions  under  which  the  offices  are  created,  and  selec- 
tion by  the  legislature  or  appointment  by  other  authority  is  to 
some  extent  provided  for. 

In  the  federal  government  only  the  president  and  vice-presi- 
dent are  elected,  and  the  vice-president  is  an  executive  officer 
only  in  case  he  is  called  upon  to  perform  the  functions  of  the 
president  on  the  removal  of  the  latter  from  office,  or  his  death, 
resignation,  or  inability.  (See  above,  §  41.)  The  function  of 
the  vice-president  as  presiding  officer  of  the  Senate  is  not  in 
any  sense  executive. 


§  123]  Appointment  of  Officers.  203 

Under  the  federal  constitution  (Art.  II,  §  2,  1^  2)  it  is  pro- 
vided that  the  president  "  shall  nominate,  and  by  and  with  the 
advice  and  consent  of  the  Senate  shall  appoint,  ambassadors, 
other  public  ministers  and  consuls,  judges  of  the  Supreme  Court 
and  other  officers  of  the  United  States  whose  appointments  are 
not  herein  otherwise  provided  for  and  which  shall  be  established 
by  law."  The  ambassadors,  public  ministers,  and  consuls  may 
be  regarded  as  officers  of  the  executive  department  discharging 
its  functions  in  the  diplomatic  relations  of  this  country  to  for- 
eign countries,  while  the  judges  of  the  Supreme  Court  belong 
exclusively  to  the  judicial  department.  In  fact,  all  the  impor- 
tant officers  of  the  judicial  department  are  by  law  appointed  by 
the  president.  In  the  same  section  it  is  provided  that  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers  as  it 
thinks  proper  in  the  president  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments. 

There  has  been  some  controversy  as  to  the  power  of  the 
president  to  remove  the  officers  whom  he  is  authorized  to  ap- 
point. Judges  of  the  federal  courts  are  appointed  for  good 
behavior,  and  can  only  be  removed  by  impeachment.  Other 
officers  appointed  by  and  with  the  advice  and  consent  of  the 
Senate  are  in  effect  removed  by  the  appointment  of  a  successor 
and  the  approval  of  such  appointment  by  the  Senate.  During 
the  recess  of  the  Senate  the  president  is  expressly  authorized  to 
fill  vacancies  by  granting  commissions,  which  shall  expire  at  the 
end  of  the  next  session,  and  it  seems  that  the  president  may  for 
this  purpose  declare  whether  a  vacancy  exists  which  he  has 
authority  thus  to  fill,  and  thereby  in  effect  remove  an  officer. 
If  during  the  ensuing  session  no  appointment  to  such  position 
is  approved  by  the  Senate,  then  at  the  end  of  the  session 
there  is  again  a  vacancy  in  such  office,  which  the  president  may 
fill  by  appointment,  to  expire  at  the  end  of  the  following 
session.  The  president  does,  therefore,  m  fact,  exercise  the 
power  of  removing  from  office  even  the  officers  who  are  ap- 
pointed by  and  with  the  advice  and  consent  of  the  Senate. 
Indeed,  it  seems  to  be  generally  conceded  that  all  appointive 
officers  who  are  not  entitled  by  the  constitution  to  hold  their 


204  Administrative  Functions.  [§  124 

offices  for  life  are  removable  by  the  appointing  power,  and  that, 
in  case  of  officers  who  are  appointed  with  the  approval  of  the 
Senate,  the  power  to  remove  is  in  the  president  alone. 

Congress  may  provide,  however,  as  to  the  qualifications  of 
subordinate  executive  officers,  the  conditions  on  which  they 
shall  hold  their  offices,  and  the  grounds  on  which  they  shall  be 
removed ;  for  as  the  offices  themselves  are  not  provided  for  by 
the  constitution,  but  are  created  by  law,  the  same  power  which 
creates  them  may  prescribe  the  conditions  on  which  they  shall 
be  filled. 

124.    Pardons. 

The  legislative  department,  in  the  exercise  of  its  discretion, 
defines  crimes  and  provides  for  their  punishment.  (See  above, 
ch.  X.)  The  courts  determine  whether  a  person  charged 
with  violation  of  the  criminal  law  is  guilty  and  prescribe  his 
punishment.  The  executive  department  not  only  sustains  the 
officers  of  the  court  in  enforcing  the  punishment  imposed,  but 
exercises  the  independent  function  of  suspending  or  annulling 
the  punishment  by  reprieve  or  pardon.  This  independent 
power  is  in  England  recognized  as  one  of  the  attributes  of 
sovereignty,  which,  so  far  as  the  punishment  for  crime  is  con- 
cerned, has  not  been  delegated  to  the  judiciary,  and  under  the 
federal  and  state  constitutions  it  is  preserved  as  one  of  the 
functions  of  the  executive  department.  State  constitutions 
vest  this  power  in  the  governor  or  an  executive  board,  and  the 
federal  constitution  expressly  gives  it  to  the  president  (Art. 
II,  §  2,  ^  i).  It  is  to  be  noticed,  however,  that  the  power 
of  the  president  to  reprieve  or  pardon  relates  only  to  crimes 
committed  against  the  federal  government.  He  has  no  power 
to  interfere  with  the  execution  of  the  laws  of  the  states.  And 
it  is  to  be  further  noticed  that  the  power  of  the  president  in 
this  respect  does  not  extend  to  punishment  imposed  on  a  public 
officer  by  impeachment. 

The  power  of  the  president  to  pardon  extends  to  every 
offence  known  to  the  federal  law,  and  may  be  exercised  by  him 
at  any  time  after  its  commission,  either  before  legal  proceedings 


§  124]  Pardons.  205 

are  taken  or  during  their  pendency,  or  after  conviction.  It 
may  be  exercised  by  granting  the  pardon  in  a  particular  case, 
or  by  a  general  pardon  or  amnesty  proclamation  as  to  classes 
of  persons  who  have  been  guilty  of  crime  against  the  United 
States.  Congress  can  neither  limit  the  effect  of  a  pardon  nor 
exclude  from  the  exercise  of  the  pardoning  power  any  class  of 
offenders,  and  unconditional  pardon  not  only  relieves  the 
offender  from  punishment,  but  extinguishes  the  consequences 
of  his  guilt,  whether  civil  or  criminal,  so  that  after  pardon  the 
offender  is  free  from  the  legal  effects  of  his  crime  as  fully  as 
though  no  offence  had  been  committed. 

Congress,  on  the  other  hand,  may  attach  as  a  condition  or 
qualification  to  the  holding  of  an  office  that  the  person  to  be 
appointed  has  not  been  guilty  of-  certain  specified  crimes,  and 
the  president's  pardon  will  in  such  case  not  remove  the  dis- 
qualification. But  in  the  cases  of  Cummings  v.  Missouri  and 
In  re  Garland,  it  was  held  that  neither  by  state  constitution  nor 
statute,  nor  by  act  of  Congress,  could  a  course  of  conduct  which 
was  not  criminal  at  the  time  it  was  pursued,  nor  an  offence  for 
which  a  full  pardon  has  been  granted  subsequently  be  made  a 
ground  of  disqualification  for  holding  office,  as  the  effect  would 
be  to  impose  a  penalty  or  an  additional  penalty  by  a  subsequent 
statutory  provision.  Such  legislation  would  be  ex  post  facto  in 
its  nature  and  contrary  to  the  express  prohibitions  of  the  fed- 
eral constitution.      (See  above,  §  59.) 

A  pardon  may  be  granted  upon  conditions,  and  the  immu- 
nity from  punishment  accorded  thereby  will  continue  only  so 
long  as  the  conditions  imposed  are  complied  with.  A  reprieve 
is  not  a  conditional  pardon,  but  a  temporary  suspension  of 
punishment,  and  after  the  term  of  the  reprieve  has  expired, 
punishment  may  be  inflicted  as  though  no  reprieve  had  been 
granted. 


CHAPTER   XXI. 

LEGISLATIVE   FUNCTIONS   OF   THE   EXECUTIVE; 
VETO    POWER. 

125.    References. 

J.  Story,  Constitution,  §§  881-893,  1 560-1 564;  J.  I.  C.  Hare,  Constitu- 
tional Law,  211-213;  J.  R.  Tucker,  Constitution,  §§  213,  214,  360;  J.  N. 
Pomeroy,  Cotistitutional  Laru,  §§  174-179,  697-702;  James  Bryce,  Amer- 
ican Commonwealth,  ch  vi ;  T/ie  Federalist,  No.  73;  A.  B.  Hart,  Actual 
Government  (Amer.  Citizen  Series),  §  118  ;  E.  C.  Mason,  7he  Veto  Fo7ver  ; 
E.  C.  Mason,  Calls  for  Information  from  the  Executive  (Amer.  Hist. 
Assoc,  Papers,  1891,  367). 

126.    Executive  Approval  or  Veto. 

It  is  provided  in  all  the  state  constitutions  except  two,  as  it  is 
in  the  federal  constitution  (Art.  I,  §  7,  ^  2),  that  bills  which 
have  passed  both  branches  of  Congress  or  of  a  state  legislature, 
as  the  case  may  be,  shall  be  presented  to  the  president  or  the 
governor,  who  shall  sign  them,  if  in  his  judgment  they  should 
be  approved ;  otherwise  he  returns  them  with  his  objections  to 
that  house  of  Congress  or  of  the  state  legislature  in  which  they 
shall  have  originated.  Such  a  return  of  a  bill  with  objections 
is  usually  called  a  veto,  and  in  some  state  constitutions  that 
term  is  expressly  used.  A  bill  thus  returned  may  become  a 
law  by  being  again  passed  by  both  branches  of  the  legislature 
over  the  objections  of  the  executive,  which  passage,  however, 
according  to  the  federal  constitution,  must  be  by  a  two-thirds 
vote  of  each  house;  and  similar. provisions  are  found  in  the 
state  constitutions.  When  a  bill  has  thus  been  passed,  it  be- 
comes effectual  without  further  action  on  the  part  of  the 
executive. 

It  is  generally  provided  in  the  state  constitutions,  as  it  is  in 
the  federal  constitution,  that  the  retention  of  a  bill  for  a  speci- 

206 


§  127]  Approval  or  Veto.  207 

fied  time  without  approval  or  return  by  the  executive  shall  be 
construed  as  an  approval,  and  such  a  bill  becomes  a  law  as 
effectually  as  though  it  had  been  approved.  On  one  point, 
however,  there  is  great  diversity,  that  is,  as  to  the  effect  of  the 
retention  by  the  executive  without  approval  until  after  the 
adjournment  of  the  legislative  body,  the  time  fixed  by  the  con- 
stitution for  the  return  of  the  bill  not  having  expired  when  the 
legislative  body  adjourns  ;  and  this  matter  is  of  great  practical 
importance,  for  it  is  a  common  occurrence  that  the  most  im- 
portant bills  are  not  finally  acted  upon  by  the  legislative  body 
until  within  a  few  days  of  adjournment,  so  that  the  time  fixed 
after  which  the  bill  shall  become  a  law  without  approval  if  not 
returned  with  .objections  does  not  expire  before  adjournment. 

The  practical  construction  put  upon  the  provisions  of  the 
federal  constitution  in  this  respect  is  that  bills  which  have  not 
received  the  president's  approval,  or  have  not  been  returned  by 
him  with  objections  and  passed  over  his  veto,  before  the  ad- 
journment of  Congress,  cannot  become  effective,  no  approval 
of  the  president  after  the  adjournment  of  Congress  being  con- 
sidered sufficient.  But  by  the  provisions  of  some  state  consti- 
tutions, the  governor  may,  within  the  time  specified  by  the 
constitution,  approve  a  bill  so  as  to  make  it  effectual  as  a 
statute  after  the  legislative  body  has  adjourned. 

127.    Exercise  of  Executive  Discretion  toward  Legislation. 

In  the  approval  or  veto  of  a  bill  presented,  the  executive  is 
not  limited  to  the  mere  determination  of  whether  the  bill,  if  it 
becomes  a  statute,  will  be  valid  or  constitutional.  The  execu- 
tive may  take  into  account  all  those  considerations  which  may 
properly  influence  the  members  of  the  legislative  body  in  deter- 
mining whether  they  should  favor  or  oppose  the  proposed  legis- 
lation. In  the  exercise  of  his  functions  in  this  respect,  the 
president  or  the  governor  acts  in  reality  as  a  branch  of  the  legis- 
lative department.  He  exercises  substantially  the  authority 
which,  under  the  constitution  of  England,  is  exercised  by  the 
king  with  reference  to  legislation,  subject,  however,  to  the  limita- 
tion which  was  a  feature  novel  in  forms  of  government,  that  the 


2o8  Executive  and  Legislation.  [§  128 

proposed  bill  may  become  a  law  upon  passage  over  the  executive 
veto  by  the  requisite  majority  of  each  branch  of  the  legislative 
body. 

In  practice  the  president  or  a  governor  actually  exercises 
greater  authority  than  is  now  exercised  in  this  respect  by  the 
king  of  England,  for  in  England  the  sovereign  since  17 15  has 
uniformly  approved  all  bills  which  have  been  presented  to  him 
by  Parliament.  The  English  practice  results  from  the  custom 
prevailing  there  that  the  king  acts  only  through  the  ministry, 
composed  of  officers  appointed  by  him  from  the  dominant 
party  in  Parliament,  so  that  the  measures  favored  by  the  minis- 
try, as  it  is  called,  are  the  measures  which  receive  the  approval 
of  Parliament,  and,  therefore,  will  likewise  receive  the  approval 
of  the  king.  In  other  words,  the  king,  in  his  relations  with 
Parliament,  does  not  exercise  his  individual  will  or  judgment, 
but  adopts  the  judgment  of  the  officers  who  represent  him,  and 
who  are  selected  for  the  reason  that  they  can  secure  the  approval 
of  Parliament  for  the  measures  which  they  propose.  Under 
the  constitutional  system  of  the  United  States,  the  chief  execu- 
tive, whether  president  or  governor,  has  an  individual  respon- 
sibility, and  exercises  an  independent  judgment ;  and  while  it 
is  likely  that,  being  an  elective  officer,  his  pohtical  views  will 
correspond  with  those  of  the  majority  in  the  legislative  body, 
it  by  no  means  follows  that  he  will  necessarily  approve  all 
measures  which  have  received  the  support  of  the  majority  in 
each  branch  of  the  legislative  body. 

128.    Executive  Recommendations  as  to  Legislation. 

The  participation  of  the  chief  executive,  whether  president  or 
governor,  in  matters  of  legislation,  is  not  limited,  however,  to 
the  exercise  of  the  veto  power.  The  president  is  directed  to  give 
to  Congress,  from  time  to  time,  "  information  of  the  state  of  the 
Union,  and  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary  and  expedient"  (Const.  Art.  II, 
§  3),  and  similar  provisions  are  found  in  state  constitutions 
with  reference  to  the  governor.  Accordingly,  it  is  the  practice 
for  the  executive  to  indicate  in  a  message  to  the  legislative  body 


§  128]  Discretion  and  Recommendations.     209 

at  the  beginning  of  each  session  such  measures  of  legislation 
as  he  deems  important  to  be  considered,  and  he  may  at  other 
times,  in  special  messages,  propose  other  measures  for  their 
consideration.  These  measures  are  not,  however,  officially  pro- 
posed in  the  form  of  statutes,  but  by  way  of  recommendations, 
in  order  that  appropriate  bills  may  be  framed  and  passed  by  the 
legislative  body,  if  the  majority  of  the  members  thereof  approv  e 
of  the  proposed  legislation. 

By  the  same  section  of  the  federal  constitution  it  is  provided 
that  the  president  may,  on  extraordinary  occasions,  convene 
both  houses  of  Congress  in  extra  session,  or,  in  case  of  dis- 
agreement between  them  as  to  the  time  of  adjournment,  may 
adjourn  them  to  such  time  as  he  shall  think  proper,  and  similar 
provisions  are  found  in  state  constitutions.  There  has  been 
little  occasion  to  exercise  the  power  to  adjourn,  but  the  power 
to  call  extra  sessions  when  some  emergency  arises  rendering 
legislative  action  important  is  frequently  resorted  to. 


14 


CHAPTER   XXII. 

MILITARY   POWERS. 

129.    References. 

J.  Story,  Constitution,  §§  1490-1492;  J.  R.  Tucker,  Constitution,  §  363; 
J.  N.  Pomeroy,  Constitutional  Law,  §§  703-714;  The  Federalist,  No.  74; 
A.  B,  Hart,  Actual  Governmeftt  (hvatx.  Citizen  Series),  §§  201,202;  Mar- 
tin V.  Mott  {i?>27,  12  Wheaton,  19;  7  Curtis'  Decisions,  10;  McClain's 
Cases,  518;  Thayer's  Cases,  2290),  Luther  \.  Borden  (1848,  7  Howard, 
I  ;  17  Curtis'  Decisions,  i  ;  McClain's  Cases,  595 ;  Thayer's  Cases,  191). 

130.    President  or  State  Executive  as  Commander-in-Chief. 

Perhaps  no  function  of  the  president  or  chief  state  executive 
is  more  significant  as  indicating  his  independent  and  exalted 
position  than  that  of  being  the  commander-in-chief  of  the  army 
and  navy  of  the  United  States  and  of  the  mihtia  of  the  sev- 
eral states  when  called  into  the  actual  service  of  the  United 
States,  in  the  case  of  the  president  (Const.  Art.  II,  §  2,  ^  i),  or 
commander-in-chief  of  the  state  militia  in  the  case  of  a  state 
executive.  As  already  indicated  in  the  chapter  relating  to  the 
war  power  (see  above,  §  114),  Congress  is  authorized  to  make 
rules  for  the  government  and  regulation  of  the  land  and  naval 
forces,  but  the  command  of  these  forces  and  the  enforcement 
of  the  rules  for  their  government  are  vested  in  the  president. 
The  governor  of  a  state  is  given  similar  authority  with  reference 
to  the  state  militia.  It  is  not  intended  that  the  president  or  a 
governor  shall  take  active  command  of  the  military  forces  of  the 
United  States  or  of  a  state  in  time  of  hostilities.  He  is  essen- 
tially a  civil  officer.  But  the  military  or  war  department  is  a 
branch  of  the  executive  department,  and  the  chief  executive  is 
therefore  necessarily  its  head. 

As  the  head  of  the  executive  department,  the  power  of  de- 
claring martial  law,  that  is,  of  putting  the  military  power  for  the 

210 


§131]  Protection  of  the  States.  211 

time  being  in  superiority  to  the  civil  power,  is  in  the  president, 
in  the  case  of  the  United  States,  and  in  the  governor  in  the  case 
of  a  state.  In  the  federal  constitution  this  power  is  limited  by 
the  provision  that  "  The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended  unless  when  in  case  of  rebellion  or  in- 
vasion the  public  safety  may  require  it "  (Art.  I,  §  9,  ^  2).  The 
existence  of  martial  law  is  regarded,  however,  as  but  a  temporary 
condition  arising  from  necessity.  (See  above,  §  115.)  The  civil 
power  of  the  government  and  the  jurisdiction  of  its  courts  are 
not  to  be  permanendy  abrogated,  but  so  soon  as  the  condition 
of  necessity  ceases  to  exist,  the  civil  power,  which  has  been 
temporarily  suspended,  is  restored  to  supremacy. 

131.  Protection  of  the  States  against  Invasion  or  Domestic 

Violence. 

With  reference  to  the  protection  of  the  state  governments 
and  interference  in  state  affairs,  the  government  of  the  United 
States  has  no  other  authority  than  to  "  guarantee  to  every  state 
in  this  Union  a  republican  form  of  government,"  and  "protect 
each  of  them  against  invasion ;  and  on  application  of  the  legis- 
lature, or  of  the  executive  (when  the  legislature  cannot  be  con- 
vened), against  domestic  violence  "  (Const.  Art.  IV,  §  4).  The 
duty  to  guarantee  a  republican  form  of  government  does  not, 
perhaps,  rest  especially  on  the  president ;  but,  as  the  head  of 
the  military  and  naval  forces  of  the  United  States,  it  is  within 
the  scope  of  his  duty  to  give  protection  against  invasion  and 
domestic  violence,  and  Congress  by  act  of  1795  provided  for 
the  exercise  by  him  of  this  function.  He  may  call  out  the 
militia  of  other  states  for  this  purpose,  and,  as  the  final  and 
conclusive  authority,  must  determine  whether  an  emergency 
exists  requiring  the  exercise  of  his  authority.  (See  Martin  v. 
Mott^  It  may  be  necessary  for  him  to  determine  whether 
there  is  a  state  government,  and,  as  between  conflicting  claims 
of  different  persons  or  bodies,  who  is  the  lawful  executive  of  the 
state  and  which  is  the  lawful  legislative  body  thereof.  These 
are  among  the  political  powers  of  the  federal  government,  and 
such  powers  are  necessarily  in  the  executive  rather  than  in  the 


212     "  Military  Powers.  [§131 

legislative  or  judicial  department.  Each  department,  however, 
can  determine  questions  of  this  character,  necessarily  arising 
before  it  in  the  discharge  of  its  duties.  Thus,  the  Senate  of  the 
United  States  may  have  to  determine  which  of  two  senators 
elected  by  rival  state  legislatures  is  entitled  to  a  seat  as  senator 
from  the  state  ;  and  the  judicial  department  may  find  it  neces- 
sary, in  a  suit  brought  by  a  state,  to  determine  whether  the 
government  purporting  to  act  for  the  state  in  bringing  such  suit 
is  the  lawfully  authorized  government  of  the  state.  But  so  far 
as  the  president  is  called  upon,  in  the  discharge  of  his  duties, 
to  determine  the  legality  or  illegality  of  a  state  government,  his 
action  cannot  be  overridden  or  reviewed  by  either  of  the  other 
departments  of  the  federal  government.  It  is  to  be  noticed 
that  there  is  a  distinction  between  the  power  of  the  president 
to  protect  a  state  against  invasion  and  domestic  violence  and 
his  power  to  enforce  the  laws  of  the  United  States.  (See  above, 
§  122.)  In  the  one  case  he  acts  only  upon  the  call  of  the  state 
government,  in  the  other  he  acts  under  his  authority  as  chief 
executive  of  the  United  States  to  see  that  its  operations  are  not 
interfered  with  or  hindered,  and  with  reference  to  the  discharge 
of  his  duties  in  this  respect  the  request  of  the  state  government 
is  wholly  immaterial  and  its  protests  would  be  unavailing.  The 
authority  of  the  president  in  enforcing  the  laws  of  the  United 
States  cannot  be  made  to  depend  upon  state  action. 


CHAPTER  XXIII. 

DIPLOMATIC   RELATIONS  ;  TREATY-MAKING  POWER 

132.  References. 

J.  Story,  Constitution,  §§  1 505-1 523,  1 565-1 568  ;  J.  R.  Tucker,  Constitu- 
tion, §§  353-356,  361 ;  J.  N.  Pomeroy,  Constitutional  Lazu,  §§  669-681  ; 
The  Federalist,  No.  75;  C.  H.  Butler,  Treaty- Ma  king  Power;  A.  B. 
Hart,  Actual  Government  (Amer.  Citizen  Series),  ch.  xxiii ;  H.  W. 
Rogers,  Treaty-Making  Power  (Amer.  Bar  Assn.,  Proceedings,  1893,  P-  243  ; 
North-western  Law  Rev.,  II,  i)  ;  J.  W.  Burgess,  Federal  Government  and 
Internatiotial  Responsibility  (Pol.  Sci.  Quart.),  vi.  338  ;  E.  W.  Huff  cut,  /«- 
terfiational  Liability  for  Mob  Injuries  (Amer.  Academy  of  Pol.  Sci.,  Annals, 
II,  69)  ;  Jonesw.  Ufiited  States  (1890, 137  U.  S.  202  ;  McClain's  Cases,  590 ; 
Thayer's  Cases,  364) ;  Haver  v.  Yaker  (1869,  9  Wallace,  32  ;  McClain's 
Cases,  581)  ;  People  v.  Gerke  (1855,  5  California,  381  ;  McClain's  Cases, 
583)  ;  Head  Money  Cases  (1884,  112  U.  S.  580;  McClain's  Cases,  587; 
Thayer's  Cases,  758);  The  Cherokee  Tobacco  (1870,  11  Wallace,  616); 
Foster  v.  Neilson  (1829,  2  Peters,  253)  ;  Chinese  Exclusion  Case,  Chae  Chan 
Pingv.  United  States  (1889,  130  U.  S.  581  ;  McClain's  Cases,  562);  United 
States,  ex.  rel.  v.  Williams  (1904,  194  U.  S.  279). 

133.     Executive  Authority  in  Diplomacy. 

The  states  can  have  no  relations  whatever  with  foreign  gov- 
ernments (Const.  Art.  I,  §  10,  IF  i).  Toward  foreign  powers, 
the  United  States  collectively  constitute  one  single  power,  rep- 
resented by  the  federal  government,  and  the  relations  between 
that  government  and  foreign  governments  are  through  the 
executive  department  and  in  the  name  of  the  president  as  chief 
executive.  Congress  cannot  deal  with  foreign  powers,  and  the 
courts  can  only  take  cognizance  of  their  existence  and  rights  by 
recognizing,  interpreting,  and  applying  the  action  of  the  execu- 
tive department,  evidenced  by  treaties  or  otherwise.  The 
action  of  the  executive  department  in  determining  in  a  contro- 
versy with  a  foreign  government  whether  certain  territory  is 
territory  of  the  United  States  cannot  be  interfered  with  by  the 
courts.  (See  yones  v.  United  States.)  So  also  it  is  for  the 
executive  department  to  determine  whether  this  government 

213 


214  Diplomatic  Relations.  [§  134 

will  recognize  as  an  independent  sovereign  power  a  foreign 
state  claiming  such  recognition.  In  short,  the  entire  diplo- 
matic relations  between  this  and  other  countries  are  under  the 
control  of  the  executive ;  and  the  action  of  the  executive  in 
such  matters  is  binding  upon  Congress,  the  courts,  and  all  federal 
and  state  officers. 

134.  Executive  Authority  as  to  Aliens. 

The  power  to  determine  the  relations  between  this  govern- 
ment and  other  governments  extends  also  to  the  determination 
of  the  rights  and  privileges  which  shall  be  accorded  to  the  sub- 
jects of  foreign  governments,  either  in  relation  to  property 
within  the  jurisdiction  of  this  government,  or  the  personal  privi- 
leges which  shall  be  accorded  to  them  within  the  limits  of  the 
United  States.  As  will  appear  in  the  next  section,  these  rights 
and  privileges  may  be  determined  by  treaty.  But  in  the  ab- 
sence of  treaty  provisions,  the  presence  of  aliens  within  the 
limits  of  the  United  States  is  within  the  control  of  the  executive 
department.  Congress,  in  the  exercise  of  the  legislative  power, 
may  provide  for  the  exclusion  of  aliens,  or  the  deportation  of 
aliens  who  have  been  permitted  to  come  within  the  limits  of 
the  United  States  but  have  not  acquired  or  are  not  permitted 
to  acquire  the  rights  of  citizenship.  The  enforcement  of  the 
regulations  made  by  Congress  rests  with  the  executive,  primarily, 
and  not  with  the  courts. 

While  the  policy  of  the  federal  government  has  in  general 
been  to  permit  aliens  freely  to  come  into  this  country,  and  re- 
side here,  enjoying  the  same  personal  and  property  rights  as 
citizens,  this  policy  has  been  within  recent  years  modified  in 
two  important  respects:  (i)  by  excluding  immigrants  who  be- 
long to  the  criminal  classes  or  are  hkely  to  become  charges  on 
the  public,  or  are  afflicted  with  contagious  diseases  so  that 
their  admission  would  imperil  the  general  health,  or  who  are 
brought  in  under  contract  binding  them  to  service ;  (2)  by  ex- 
cluding the  Chinese,  whose  presence  in  large  numbers  was 
thought  to  be  inimical  to  the  general  public  welfare. 

The  restrictions  on  immigration  might  be  supported  under 


§135]  Executive  Authority.  215 

the  power  of  Congress  to  regulate  commerce  with  foreign  na- 
tions (see  above,  §  93),  but  the  total  exclusion  of  the  Chinese, 
and  provisions  for  the  deportation  of  persons  of  that  nationality 
who  refuse  to  comply  with  certain  regulations  as  to  their  resi- 
dence in  this  country,  rest  on  a  higher  power  than  that  involved 
in  the  regulation  of  commerce,  and  can  be  supported  only  on 
the  theory  that  the  federal  government  may  control  not  only 
the  relations  of  this  government  with  foreign  governments,  but 
also  the  relations  of  this  government  with  the  subjects  of  foreign 
governments  {^Chinese  Exclusion  Case  ;  and  see  United  States 
v.  Williams  as  to  deportation  of  anarchists). 
135.     Treaty  Power. 

A  treaty  is  a  compact  between  two  independent  governments, 
determining  rights  or  privileges  between  them  as  sovereigns ; 
or  between  each  and  the  subjects  of  the  other;  or  between 
the  subjects  of  one  and  the  subjects  of  the  other.  In  the 
United  States  the  treaty-making  power  is  vested  by  the  con- 
stitution in  the  president,  who  negotiates  the  treaty  through 
the  regular  diplomatic  representatives  of  the  government,  or 
special  representatives  appointed  for  the  purpose ;  but  it  does 
not  become  a  complete  treaty  except  by  the  advice  and  con- 
sent of  the  Senate,  concurrence  of  two-thirds  of  the  senators 
present  when  the  treaty  is  acted  upon  being  necessary  to  its 
approval  (Art.  II,  §  2,  IT  2),  Even  then  it  must  be  promulgated 
by  the  executive  department  after  it  has  also  been  ratified  by  the 
other  contracting  power. 

A  treaty  may  be  self-executing,  or  it  may  involve  legislative 
action  in  order  that  its  provisions  may  be  carried  into  effect. 
In  the  latter  case  the  necessary  legislation  must  be  provided  by 
Congress,  and  the  House  of  Representatives,  by  refusing  to 
concur  in  legislation  proposed  for  that  purpose,  may  defeat  the 
execution  of  the  treaty.  While  it  may  perhaps  be  said  that  it 
is  in  a  general  sense  the  duty  of  Congress  to  carry  out  the 
provisions  of  a  treaty  by  necessary  legislation,  and  the  national 
honor  may  require  that  it  do  so,  nevertheless  that  is  a  matter 
for  the  exercise  of  legislative  discretion,  and  if  the  House  of 
Representatives  refuses  to  act,  or  imposes  conditions  not  in- 


21 6  Diplomatic  Relations.  [§  136 

eluded  in  the  treaty  itself,  there  is  no  means  provided  for  con- 
trolling its  action.  Thus,  if  a  treaty  involves  the  payment  of 
money,  it  can  only  be  carried  out  by  the  concurrence  of  the 
House  of  Representatives  in  an  act  appropriating  money  from 
the  public  treasury  for  the  purpose. 

The  treaty-making  power  is  practically  without  limit,  so  far 
as  it  is  exercised  with  reference  to  matters  which  may  be  regu- 
lated by  treaty,  and  it  extends  to  all  proper  subjects  of  negotia- 
tion between  our  government  and  the  governments  of  other 
nations.  Its  limitations  are  to  be  found  only  in  its  nature  and 
the  nature  of  the  federal  government,  as  defined  by  the  federal 
constitution.  It  could  not  be  used  for  the  purpose  of  changing 
the  character  of  the  federal  government,  or  determining  its  rela- 
tions with  a  state  government.  But  whatever  limitations  there 
may  be  on  the  treaty-making  power,  they  are  implied,  and  are 
nowhere  expressed  in  the  federal  constitution. 

136.    Treaties  are  a  Part  of  the  Law  of  the  Land. 

Being  compacts  between  governments,  treaties  are  not  usually 
regarded  as  a  part  of  the  internal  or  municipal  law  of  either  of 
the  governments  which  are  the  parties  thereto.  But  it  is  ex- 
pressly provided  in  the  federal  constitution  that  "all  treaties 
made  or  which  shall  be  made  under  the  authority  of  the  United 
States  "  shall  be,  like  the  federal  constitution  and  the  laws  of 
the  United  States  made  in  pursuance  thereof,  "  the  supreme 
law  of  the  land  ;  and  the  judges  in  every  state  shall  be  bound 
thereby,  anything  in  the  constitution  or  laws  of  any  state  to  the 
contrary  notwithstanding"  (Const.  Art.  VI,  ^  2).  There- 
fore, rights  and  duties  of  persons,  as  well  as  the  rights  and  obli- 
gations of  the  government,  may  be  directly  affected  by  treaties  ; 
and  such  rights  and  duties,  so  far  as  they  are  granted  to  or 
imposed  upon  individuals,  may  be  protected  and  enforced  in 
the  courts.  The  provisions  of  a  treaty  which  it  is  within  the 
power  of  the  federal  government  to  make  will  be  superior  in 
authority  to  any  state  statute  relating  to  the  same  subject-matter. 

Thus,  as  the  rights  of  the  subjects  of  foreign  governments  to 
acquire  by  purchase  or  inheritance  property  within  the  limits 


§136]  Treaties.  217 

of  the  United  States  is  a  proper  subject  to  be  regulated  by 
treaty  between  this  government  and  such  foreign  governments, 
the  states  cannot  by  legislation  deprive  the  subjects  of  foreign 
governments  of  property  rights  guaranteed  to  them  by  treaty. 
It  is  within  the  general  power  of  the  states  to  determine  to 
what  extent,  if  at  all,  aliens  may  acquire  and  enjoy  property 
rights  under  state  laws.  In  many  states  non-resident  aliens  are 
forbidden  from  acquiring  real  property  by  purchase  or  inheri- 
tance. Nevertheless,  so  far  as  such  state  statutes  may  interfere 
with  the  rights  of  an  alien  under  a  treaty  between  this  govern- 
ment and  the  government  of  which  such  alien  is  a  subject,  the 
state  law  must  give  way,  and  if  under  the  treaty  the  alien  is  en- 
titled to  acquire  or  own  property,  by  inheritance  or  otherwise, 
he  may  enjoy  that  right,  and  it  will  be  protected  by  the  courts, 
although  it  is  in  contravention  of  the  law  of  the  state  where  the 
property  is  situated  {People  v.  Gerke). 

Another  result  of  declaring  a  treaty  to  be  the  law  of  the  land 
is  that  it  stands  on  the  same  footing  in  this  respect  with  an  act 
of  Congress.  It  is  the  general  rule,  as  between  two  statutes 
which  are  in  conflict,  if  they  are  enacted  by  the  same  authority, 
that  the  one  later  in  time  will  control,  being  deemed  in  this 
respect  and  to  the  extent  to  which  the  two  are  in  conflict  to  be 
a  repeal  of  the  former.  Likewise,  as  between  two  treaties, 
made  between  the  same  contracting  powers,  the  later  in  ^  time 
will  control  or  supersede,  so  far  as  they  are  inconsistent,  the 
former.  It  is  to  be  borne  in  mind  that  a  statute  enacted  by 
Congress  is  not  a  part  of  the  law  of  the  land  unless  it  is  consis- 
tent with  and  enacted  under  the  authority  of  the  constitution, 
so  that  there  are  no  doubt  some  subjects,  such  as  the  right  of 
an  alien  to  acquire  or  inherit  property,  which  cannot  be  regu- 
lated by  Congress,  although  they  may  be  controlled  by  treaty. 
In  such  a  case  there  could  be  no  conflict  between  the  treaty 
and  the  statute,  for  the  statute  would  be  unconstitutional. 

As  between  a  treaty  and  a  statute  which  is  enacted  by  Con- 
gress in  the  exercise  of  some  express  or  implied  power  con- 
ferred upon  it,  the  later  in  point  of  time  is  controlling,  and  this 
will  be  true  even  though  in  the  enactment  of  the  statute  Con- 


21 8  Diplomatic  Relations.  [§  136 

gress  has  violated  the  treaty  obligations  of  the  government  to 
the  foreign  power  with  whom  the  treaty  is  made.  Thus,  if 
there  were  a  treaty  between  this  government  and  the  Chinese 
government  by  which  the  subjects  of  the  latter  were  entitled 
to  come  freely  into  the  United  States,  Congress  would  have  the 
power,  notwithstanding  the  treaty,  to  exclude  Chinese  subjects. 
(See  Chinese  Exclusion  Case.)  As  between  this  country  and 
China  such  a  statute  would  be  a  violation  of  treaty  obligations  ; 
but  redress  for  such  breach  of  faith  would  be  secured  by  diplo- 
matic negotiations  between  the  two  countries.  The  courts 
would  recognize  the  statute,  being  later  in  point  of  time,  as 
controlling  so  far  as  any  judicial  questions  could  arise.  On 
the  other  hand,  the  treaty-making  power  may  abrogate  a  statute 
and  the  courts  would  be  bound  to  recognize  the  treaty,  being 
later  in  point  of  time,  as  superseding  the  statute,  so  far  as  it 
was  applicable  to  the  subject-matter  controlled  by  the  treaty. 

It  is  apparent,  therefore,  that  while  the  executive  department 
is  supreme  in  determining  the  relations  between  this  and  foreign 
countries,  it  may  not  be  able  to  carry  out  its  agreements  so  far 
as  they  involve  either  legislation  by  Congress  or  the  action  of 
the  states.  This  inability  of  the  executive  department  in  its 
relations  with  foreign  governments  to  carry  out  its  obligations 
is  due  to  the  fact  that  no  one  department  of  the  federal  govern- 
ment is  sovereign  with  reference  to  the  other  departments,  and 
the  further  fact  that  the  federal  government  is  in  itself  a  govern- 
ment of  limited  powers.  With  reference  to  the  latter  point  it 
has  already  been  noticed  (see  above,  §  49)  that  the  general  pro- 
tection of  persons  and  property  within  state  limits  depends 
upon  the  laws  of  the  state.  If,  therefore,  an  alien  is  denied  in 
any  state  the  proper  protection  of  the  law,  his  government  may 
justly  make  complaint  to  the  federal  government,  but  the  fed- 
eral government  can  give  no  redress  unless  it  be  by  way  of  pay- 
ment of  damages  to  the  subject  of  the  foreign  government  who 
is  thus  denied  the  protection  of  the  law.  Perhaps  Congress 
might  and  should  by  statute  give  protection  to  aliens  in  their 
personal  and  property  rights ;  but  thus  far  it  has  failed  to  do  so 
in  any  effectual  manner. 


Part  V. 

The    Judiciary, 


CHAPTER  XXIV. 

GENERAL  NATURE   OF  JUDICIAL   POWER. 

137.   References. 

J.  Story,  Constitution^  §§  1573-1579;  T,  M.  Cooley,  Constitutional  Limi- 
tations, **  397-414;  J.  I.  C.  Hare,  Constitutional  Law,  lect.  viii;  J.  R. 
Tucker,  Constitution,  ch.xiii ;  J.  N.  Pomeroy,  Constitutional  Law,  §§  729- 
739 ;  James  Kent,  Commentaries,  lects.  xiv,  xviii ;  The  Federalist,  No.  78 ; 
James  Bryce,  American  Commonwealth,  chs.  xxii,  xlii ;  J.  W.  Burgess, 
Political  Science  and  Constitutional  Law,  II,  320-366. 

138.    The  Judiciary  in  General. 

In  those  countries  in  which  Anglo-Saxon  institutions  prevail, 
the  independence  of  the  judiciary  and  the  importance  of  its 
functions  are  very  fully  recognized,  and  under  our  constitutional 
system  they  are  peculiarly  emphasized.  Although  the  courts 
have  no  military  force  directly  at  their  command,  and  no  treasury 
from  which  to  appropriate  money,  nevertheless  their  decisions 
in  the  cases  coming  before  them,  although  they  may  involve 
questions  of  the  greatest  importance,  not  only  to  individuals  but 
to  the  public,  are  almost  always  acquiesced  in  and  carried  out. 
The  judicial  department  is  ultimately  dependent  on  the  execu- 
tive department  to  enforce  its  judgments  if  resisted,  and  upon 
the  legislative  department  for  the  appropriation  of  the  funds 
necessary  to  enable  it  to  continue  in  existence  and  discharge  its 

219 


2  20  Judicial  Power.  [§138 

functions ;  but  the  general  respect  for  law,  and  the  conviction 
that  the  rights  of  the  people  are  better  protected  by  an  orderly 
administration  of  justice  than  in  any  other  way,  gives  to  the 
judiciary  a  popular  support,  notwithstanding  criticism  or  dis- 
satisfaction as  to  the  result  reached  in  particular  cases,  and 
enables  it  with  confidence  to  rely  upon  all  the  executive  and 
legislative  assistance  which  may  be  necessary.  On  the  other 
hand,  the  total  inability  of  the  courts  to  do  more  than  render 
judgments,  which  must  be  dependent  for  enforcement,  if  resisted, 
on  the  action  of  the  executive  department,  and  their  obligation 
to  apply  the  law  as  it  exists,  subject  to  any  change  which  the 
legislative  department  may  see  fit  to  make  within  constitutional 
limits  if  the  law  as  administered  is  found  to  be  unsatisfactory, 
constitute  an  ample  safeguard  against  any  revolutionary  or 
tyrannical  use  by  the  courts  of  the  independent  power  vested 
in  them. 

The  functions  of  the  judicial  department  are  discharged  by 
courts  created  by  law,  and  courts  can  only  decide  cases  which 
are  properly  brought  before  them.  A  case  brought  before  a 
court  is  said  to  be  within  the  jurisdiction  of  the  court  if  it  is 
one  which  by  law  the  court  is  authorized  to  try,  and  which,  in 
the  particular  instance,  is  so  submitted  to  it  that  it  may  be  tried. 
It  is  often  said  that,  to  authorize  the  determination  of  a  case  in  a 
court,  the  court  must  have  jurisdiction  of  the  subject-matter  and 
of  the  parties.  But  by  such  a  statement  is  simply  meant  that 
the  case  must  be  one  of  a  class  of  cases  which  by  law  the  court 
has  authority  to  determine ;  and  that  the  particular  case  is 
brought  by  one  having  the  right  to  sue  in  the  court,  and  that 
the  party  against  whom  a  decision  is  asked  is  served  with  notice 
or  otherwise  brought  into  court  in  such  way  that  he  is  bound 
to  present  his  defence. 

It  would  be  going  beyond  the  proper  scope  of  a  treatise  on 
constitutional  law  to  discuss  at  length  and  in  detail  the  subject 
of  jurisdiction  ;  it  is  sufficient  to  say  that,  when  a  case  is  prop- 
erly within  the  jurisdiction  of  a  court  to  decide,  its  decision 
is  conclusive  on  the  rights  of  the  parties  as  to  the  matter 
presented,  save  as  it  may  be  subject  to  review  by  some  higher 


§  139]  State  Judiciary.  221 

court,  and  cannot  be  questioned  by  either  of  the  other  de- 
partments of  government.  On  the  other  hand,  the  courts 
have  no  power  to  determine  any  other  questions  than  those 
presented  to  them  in  controversies  between  parties ;  and  they 
cannot,  therefore,  interfere,  except  in  particular  cases  in  which 
the  rights  of  individuals  are  involved,  with  the  discharge  of  their 
functions  by  the  other  departments.  It  is  true  that  a  decision 
of  a  court  interpreting  the  constitution  or  the  law  is  properly 
regarded  as  a  precedent,  which  ought  to  be  followed  by  the 
other  departments,  as  well  as  by  other  courts  of  the  same  or  an 
inferior  grade  in  similar  cases.  But  the  decision  of  a  court  is 
a  precedent  of  controlling  effect  only  because  of  the  power 
which  the  courts  may  have  to  decide  similar  cases  in  the  same 
way ;  as  to  a  matter  which  cannot  come  before  the  courts  for 
adjudication,  the  decision  of  a  court  is  not  binding  on  the  legis- 
lative or  the  executive  department,  although  it  may  properly  be 
given  weight  and  respect  as  expressing  views  which  are  entitled 
to  the  highest  possible  consideration.     (See  also  above,  §  7.) 

139.    The  Judiciary  of  the  States. 

The  general  function  of  deciding  legal  controversies  in  cases 
properly  presented  is  one  which  pertains  to  and  is  exercised  by 
the  courts  established  in  each  state.  It  is  to  be  borne  in  mind 
that  the  general  powers  of  government,  which  include  the  exer- 
cise of  judicial  power,  are  exercised  by  the  state  governments, 
and  that  only  so  far  as  these  powers  are  conferred  on  the  federal 
government  is  the  power  of  the  state  judiciary  limited  by  the 
federal  constitution. 

It  would  not  be  practicable  here  to  describe  in  detail  the 
judicial  departments  of  the  state  governments,  for  their  organi- 
zation and  methods  of  procedure  are  various,  depending  on  the 
constitution  and  laws  of  the  respective  states.  It  may,  however, 
be  pointed  out  that  in  each  state  there  is  a  system  of  courts, 
which  may  be  roughly  classified  as  courts  of  inferior  jurisdic- 
tion, courts  of  general  original  jurisdiction,  and  courts  of 
appellate  jurisdiction. 

(i)   The  courts  of  justices  of  the  peace,  and  police  or  other 


222  Judicial  Power.  [§  139 

city  courts,  are  examples  of  courts  of  inferior  jurisdiction  ;  their 
powers  are  limited  to  the  trial  of  particular  classes  of  cases  of 
an  inferior  grade ;  that  is,  in  civil  cases,  controversies  involving 
a  comparatively  small  amount,  and  in  criminal  cases  the  trial 
of  prosecutions  for  offences  of  a  minor  character. 

(2)  Courts  of  general  original  jurisdiction  are  those  in  which 
any  case  cognizable  by  the  judiciary  may  be  tried,  so  far  as 
their  jurisdiction  is  not  restricted  by  provision  of  law.  They  are 
the  ordinary  courts  for  the  trial  of  lawsuits.  They  are  presided 
over  by  judges  who  exercise  the  judicial  power,  assisted  by 
officers,  such  as  a  clerk  or  recorder,  and  a  sheriff  or  marshal, 
who  perform  the  ministerial  functions  of  the  court. 

(3)  Courts  of  appellate  jurisdiction  are  those  having  author- 
ity to  review  the  decisions  of  courts  inferior  to  them  in  grade, 
and  to  determine  whether  an  error  has  been  committed  or  an 
erroneous  conclusion  reached  in  the  trial  of  a  case  in  which 
an  appeal  has  been  taken ;  for  our  judicial  system  is  constructed 
on  the  theory  that  in  important  cases  there  should  be  not 
only  a  trial,  but  an  opportunity  to  the  unsuccessful  party  to  have 
the  decision  reviewed  by  other  judges  in  a  court  of  higher  rank, 
in  order  that  ultimate  justice,  as  determined  by  the  law,  shall 
be  carefully  and  deliberately  administered  and  the  rules  of  law 
applicable  to  such  cases  fully  announced  to  serve  as  precedents 
in  other  cases.  While  it  is  important  on  the  one  hand  that  a 
party  seeking  the  protection  of  his  rights  or  redress  for  his 
wrongs  shall  have  speedy  justice,  yet  it  is  equally  important,  on 
the  other  hand,  that  there  be  such  care  and  deliberation  and 
opportunity  for  the  avoidance  of  possible  error,  as  that  the 
justice  administered  be  not  hasty,  but  the  result  of  due  con- 
sideration after  full  opportunity  for  investigation.  A  court  of 
inferior  jurisdiction  or  of  general  original  jurisdiction  is  presided 
over  by  one  justice  or  judge,  while  a  court  of  appellate  jurisdic- 
tion is  composed  generally  of  not  less  than  three  judges,  sitting 
together  and  consulting  as  to  the  decision  to  be  rendered  in 
each  case. 


§  ho]  Law  Administered.  223 

140.    The  La-w  Administered  in  the  State  Courts. 

It  must  not  be  understood  that  because  the  courts  of  a  state 
constitute  the  judicial  department  of  the  state  government  they 
cannot  take  cognizance  of  any  other  law  than  that  found  in 
the  constitution  and  statutes  of  the  state.  It  is  the  function  of 
a  court  to  decide  cases,  and  to  apply  the  law  governing  the 
case,  whatever  it  may  be.  Much  of  the  law  of  any  state  or 
nation  is  so-called  unwritten  law  ;  that  is,  it  consists  of  rules  and 
principles  not  embodied  in  constitutions  or  statutes ;  and  if  the 
questions  in  a  case  depend  for  their  determination  upon  rules 
of  unwritten  law,  it  is  for  the  court  to  decide  what  those  rules 
are,  resorting  for  that  purpose  to  the  principles  announced  in 
other  cases  in  the  same  state,  or  by  courts  in  other  states  recog- 
nizing the  same  general  system  of  jurisprudence.  Moreover, 
the  federal  constitution,  treaties,  and  statutes  are  the  supreme 
law  of  the  land  as  to  all  matters  to  which  they  are  applicable, 
and  binding  upon  the  judges  of  the  state  courts  as  well  as  upon 
the  federal  judges  (Constitution,  Art.  VI,  %  2).  And  if  the 
determination  of  a  case  before  a  state  court  involves  the  appli- 
cation of  the  federal  constitution,  treaties,  or  statutes,  it  is  the 
duty  of  that  court  to  make  the  application  and  decide  the  case 
with  reference  thereto.  The  jurisdiction  of  a  state  court  does 
not  depend  upon  the  kind  of  law  to  be  administered,  but  upon 
the  nature  of  the  case  itself,  and  it  will  hereafter  appear  that 
many  cases  are  of  such  nature  that  they  may  be  tried  either  in 
a  state  or  federal  court  at  the  election  of  one  or  the  other  of  the 
parties.     (See  below,  §§  143,  156-158,  170.) 


CHAPTER  XXV. 

JURISDICTION   OF   THE   FEDERAL  JUDICIARY. 

141.    References. 

J.  Story,  Constitution,  §§  1 573-1 579;  J.  I.  C.  Hare,  Constitutional  Law, 
lects.  xlv-xlix  ;  J.  R.  Tucker,  Constitution,  ch.  xiii ;  James  Bryce,  Ameri- 
can Commonwealth,  ch.  xxii ;  J.  N.  Pomeroy,  Constitutional  Law,  §§  740- 
746;  T.  M.  Cooley,  Constitutional  Law,  ch.  vi ;  The  Federalist,  Nos.  81, 
83;  Cohens  \.  Virginia  (1821,  6  Wheaton,  264;  5  Curtis' Decisions,  82 ; 
Thayer's  Cases,  285;  Marshall's  Decisions,  Dillon's  ed.,  357);  Martin 
V.  Hunter's  Lessee  {1816,  I  Wheaton,  304;  3  Curtis'  Decisions,  562; 
McClain's  Cases,  746). 

142.    Necessity  for  Federal  Courts. 

It  is  apparent  from  what  has  been  said  in  the  preceding 
chapter  relating  to  the  general  jurisdiction  of  the  state  courts, 
that  it  would  have  been  possible  to  provide  for  a  federal  gov- 
ernment without  a  judicial  department  \  for  all  cases,  whether 
involving  the  federal  or  state  law,  might  have  been  tried  in  the 
courts  of  the  states.  Under  the  Articles  of  Confederation  there 
was  no  provision  whatever  for  a  federal  judiciary,  although 
Congress  could  appoint  courts  for  the  trial  of  piracies  and  fel- 
onies on  the  high  seas  and  also  prize  courts  (Art.  IX).  But, 
on  the  other  hand,  a  sovereign  government  would  be  lame 
and  impotent  indeed  which  should  depend  for  the  interpreta- 
tion of  its  constitution  and  statutes,  and  the  determination  of 
the  powers  of  its  departments,  so  far  as  they  might  be  judicially 
called  in  question,  upon  the  decisions  of  the  courts  of  the  re- 
spective states  of  which  it  should  be  composed.  An  immediate 
and  practical  difficulty  would  be  that  the  courts  of  the  different 
states  might  well  entertain  diverse  views  as  to  the  construction 
of  the  constitution  and  statutes  of  the  United  States,  and  the 
federal  law,  which  is  the  supreme  law  of  the  land,  might  in  fact 

224 


§  142]        Necessity  for  Federal  Courts.  225 

be  one  thing  in  Massachusetts  and  another  thing  in  Virginia. 
It  was  therefore  necessary  to  the  stability  and  perpetuity  of  the 
Union  that  there  should  be  federal  courts,  in  which  the  rights 
of  parties  depending  upon  the  constitution  and  statutes  of  the 
United  States  could  be  ultimately  decided. 

For  some  other  purposes,  also,  it  was  essential  that  there 
should  be  federal  courts.  For  instance,  it  would  greatly  em- 
barrass the  relations  of  the  federal  government  with  foreign 
governments  if  the  ambassadors,  public  ministers,  and  consuls  of 
foreign  countries,  while  in  this  country,  should  be  subject  to  the 
jurisdiction  of  courts  not  constituting  a  part  or  department  of 
the  federal  government.  Moreover,  as  to  navigation  on  the 
high  seas,  it  is  important  that  there  be  federal  courts  to  deter- 
mine controversies  relating  thereto,  for  the  ships  of  the  United 
States,  while  on  the  high  seas,  are  deemed  a  part  of  United 
States  territory,  although  they  are  beyond  the  jurisdiction  of 
any  state. 

Furthermore,  it  is  important  that  there  be  courts  in  which 
the  federal  government  may  prosecute  crimes  against  the  laws 
of  the  United  States,  and  bring  civil  suits,  in  the  public  interest, 
against  individuals ;  and  it  would  be  embarrassing  and  incon- 
venient for  that  government  to  be  compelled  to  prosecute  these 
suits  in  state  courts.  In  these  classes  of  cases,  at  least,  it  is 
essential  to  the  dignity  and  sovereignty  of  the  federal  govern- 
ment that  there  be  federal  courts  in  which  such  controversies 
may  be  determined. 

But  there  are  other  classes  of  cases  in  which  it  may  be  de- 
sirable that  there  be  a  tribunal  other  than  the  state  courts  for 
the  determination  of  controversies  in  which  the  federal  govern- 
ment has  not  essentially  any  direct  interest.  For  instance,  in 
controversies  between  two  states  respecting  their  boundaries 
it  would  not  be  expedient  to  allow  the  courts  of  either  state  to 
render  a  final  decision.  It  could  not  be  expected  that  either 
state  would  be  satisfied  with  a  decision  in  such  a  matter 
rendered  in  the  courts  of  the  other  state.  Likewise,  in  con- 
troversies between  a  state  and  citizens  of  another  state,  or 
between  citizens  of  different  states,  or  between  citizens  of  a 

IS 


226  Federal  Jurisdiction.  [§  143 

state  and  foreign  states,  citizens  or  subjects,  it  is  highly  de- 
sirable that  the  final  jurisdiction  should  be  in  some  court  of 
higher  authority  than  the  courts  of  a  state.  In  cases  pertaining 
to  any  one  of  these  classes  last  enumerated,  the  federal  govern- 
ment has  no  direct  interest,  except  to  furnish  a  tribunal,  im- 
partial as  between  the  parties,  and  removed  from  suspicion  of 
local  influence,  and  whose  decisions  would  be  likely  to  com- 
mand the  respect  of  the  parties  concerned.  This  branch  of  the 
jurisdiction  of  the  federal  courts  may  therefore  be  said  to  be 
required  as  a  matter  of  expediency,  although  not  essential  to 
the  sovereignty  and  independence  of  the  federal  government. 

143.   General  Jurisdiction  of  the  Federal  Courts. 

The  propriety  of  providing  a  system  of  federal  courts  in 
which  cases  of  the  various  classes  described  in  the  preceding 
section  might  be  tried,  is  recognized  in  the  federal  constitu- 
tion, and  a  judicial  department  is  provided,  to  consist  of  one 
supreme  court  and  such  inferior  courts  as  Congress  may  from 
time  to  time  ordain  and  establish  (Const.  Art.  Ill,  §  i).  But 
while  the  courts  thus  provided  are  necessarily  superior  in 
authority  as  to  the  cases  within  their  jurisdiction  over  any 
courts  provided  for  by  the  states,  on  the  other  hand  they  are 
necessarily  courts  of  Hmited  and  not  of  general  jurisdiction. 
The  judicial  department  of  the  federal  government,  hke  either 
of  the  other  departments  of  that  government,  has  only  the 
powers  expressly  or  by  implication  given  to  it  in  the  federal 
constitution,  although  in  the  discharge  of  the  powers  thus  given 
it  is  supreme. 

Thus  it  may  well  be  said  that  the  courts  of  a  state,  having 
general  jurisdiction,  are  presumed  to  have  authority  to  decide 
any  controversy  of  a  judicial  nature,  not  excluded  from  their 
jurisdiction  by  the  state  or  federal  constitution,  while  the  courts 
of  the  United  States  have  only  authority  to  decide  such  cases 
as  are  expressly  or  by  implication  placed  within  their  jurisdiction 
by  the  provisions  of  the  federal  constitution,  or  by  statutes 
passed  in  accordance  with  authority  given  to  Congress  under 
that  constitution.    This  practical  difference,  then,  exists  between 


§  143]  In   General.  227 

a  state  court  of  general  jurisdiction  and  any  federal  court,  that 
any  judicial  controversy  is  presumed  to  be  within  the  jurisdic- 
tion of  such  a  state  court  until  the  contrary  appears,  while 
no  case  is  presumed  to  be  within  the  jurisdiction  of  a  federal 
court  unless  it  is  made  to  appear  that  the  nature  of  the  con- 
troversy is  such  as  to  bring  it  within  the  jurisdiction  of  such 
court,  as  prescribed  by  the  constitution  and  laws  of  the  United 
States. 

In  describing  the  federal  courts  and  the  jurisdiction  of  each, 
it  will  be  necessary,  therefore,  to  bear  in  mind  that  the  cases  of 
which  a  federal  court  may  take  cognizance  must  in  the  first 
place  be  of  one  of  the  classes  of  cases  to  which  the  judicial 
power  of  the  federal  government  is  extended  by  the  federal 
constitution ;  and  secondly,  in  the  case  of  any  federal  court, 
save  the  Supreme  Court,  the  jurisdiction  of  which  is  to  some  ex- 
tent prescribed  by  the  constitution  itself,  it  must  appear  that 
the  case  is  one  which,  by  federal  statute,  is  placed  within  the 
jurisdiction  of  the  particular  court  in  question.  Congress  can- 
not create  courts  exercising  jurisdiction  within  the  states  be- 
yond the  jurisdiction  prescribed  by  the  federal  constitution. 
On  the  other  hand,  as  to  the  particular  courts  which  it  is  au- 
thorized to  create,  it  may  limit  or  apportion  their  jurisdiction  in 
such  way  as  it  sees  fit.  It  therefore  follows  that  some  of  the 
cases  falling  within  the  general  scope  of  jurisdiction  of  the  fed- 
eral judicial  power  are  not  actually  within  the  jurisdiction  of 
any  particular  federal  court,  and  in  such  cases  the  judicial 
authority  to  decide  must  remain  exclusively  with  the  state  courts, 
simply  because  no  federal  courts  have  been  created  to  determine 
such  cases. 

As  to  the  relations  between  the  federal  and  the  state  courts, 
the  fact  that  the  case  may  be  within  the  jurisdiction  of  the 
former  does  not  necessarily  exclude  it  from  the  jurisdiction  of 
the  latter.  The  state  and  the  federal  courts  are  independent 
of  each  other.  But  in  any  case  in  which  a  federal  court  is 
properly  exercising  its  jurisdiction,  its  authority  is  necessarily 
superior  to  that  of  any  state  court,  while  on  the  other  hand  a 
state  court  may  exercise  general  jurisdiction  so  far  as  in  any 


228  Federal  Jurisdiction.  [§  143 

particular  case  it  does  not  interfere  with  the  exercise  of  power 
by  a  federal  court.  No  doubt  the  federal  government  might, 
should  it  see  fit,  exclude  the  state  courts  from  jurisdiction  in 
any  of  the  cases  which,  under  the  Constitution,  are  embraced 
in  the  general  grant  of  judicial  power  to  the  federal  govern- 
ment. But  Congress  has  seen  fit  to  exclude  the  jurisdiction  of 
the  state  courts  in  only  a  few  classes  of  cases  falling  within  the 
scope  of  the  federal  judicial  power ;  and  to  leave  the  others 
subject  to  the  jurisdiction  of  the  state  courts  so  far  as  the  latter 
do  not  interfere  with  the  actual  exercise  of  power  in  the  particu- 
lar case  by  a  federal  court. 

It  is  not  intended  to  indicate  by  this  statement  that  a  state 
court  and  a  federal  court  may  actually  try  the  same  case.  It 
is  a  principle  of  general  jurisprudence  that  when  one  court  has 
acquired  jurisdiction  of  a  case,  no  other  court  will  interfere  while 
the  case  is  pending,  nor  will  any  other  court,  except  a  court 
having  appellate  or  supervisory  jurisdiction,  review,  revise,  or 
disregard  the  result  of  the  trial  of  the  case  in  the  court  having 
authority  to  try  it.  Therefore,  in  saying  that  as  to  many  classes 
of  cases  the  federal  and  state  courts  have  concurrent  jurisdic- 
tion, no  more  is  intended  than  to  indicate  that  a  particular  case 
of  one  of  these  classes  may  be  in  either  a  state  or  a  federal 
court,  depending  upon  the  question  where  the  case  is  actually 
brought  on  for  trial ;  and  that,  if  such  a  case  is  actually  brought 
in  the  court  of  a  state,  it  may  be  finally  and  conclusively  deter- 
mined in  the  courts  of  that  state,  although  had  it  been  properly 
brought  in  the  first  instance  in  a  federal  court  it  could  prop- 
erly have  been  tried  and  finally  determined  in  the  federal 
courts. 


CHAPTER  XXVI. 

CASES   OF   FEDERAL  JURISDICTION. 

144.    References. 

In  General:  J.  Story,  Constitution,  §§  1637-1700;  T.  M.  Cooley, 
Constitutional  Limitations ,**  11-15;  J-  !•  C.  Hare,  Constitutional  Laiv, 
lects.  Iv,  Ivi ;  J.  N.  Pomeroy,  Constitutional  Law,  §§  747-760;  T.  M. 
Cooley,  Constitutional  Law,  ch.  vi;  H.  C.  Black,  Constitutional  Law, 
§§  88-90. 

Cases  arising  under  Constitution,  Laws,  or  Treaties  of  the 
United  States:  Osborne  v.  Bank  of  United  States  (1824,  9  Wheaton, 
738;  6  Curtis'  Decisions,  251;  McClain's  Cases,  617;  Thayer's  Cases, 
1346);  Pacific  Railroad  Removal  Cases  (1885,  115  U.  S.  I  ;  McClain's 
Cases,  622)  ;  Southern  Pacific  Railroad  Company  v.  California  (1886,  118 
U.  S.  109;  McClain's  Cases,  624);  Bock  v.  Perkins  (1891,  139  U.  S. 
628;  McClain's  Cases,  626). 

Cases  affecting  Ambassadors,  etc.:  Bors  v.  Preston  (1884,  iii 
U.  S.  252  ;  McClain's  Cases,  628). 

Cases  of  Admiralty:  The  Propeller  Genesee  Chief  v.  Fitzhugh, 
(1851,  12  Howard,  443  ;  McClain's  Cases,  648)  ;  The  Steamboat  Magnolia 
(1857,  20  Howard,  296;  McClain's  Cases,  650)  ;  Majichester  v.  Massachtc- 
setts  (1891,  139  U.  S.  240;  McClain's  Cases,  655). 

Suits  by  or  against  the  United  States:  Stanley  v.  Schwalby 
(1896,  162  U.  S.  255;  McClain's  Cases,  673) ;  United  States  v.  Texas  (1892, 
143  U.  S.  621  ;  McClain's  Cases,  676;  Thayer's  Cases,  310). 

Suits  against  States  :  Hans  v.  Louisiana  (1890,  134  U.  S.  i  ; 
McClain's  Cases,  702  j  Thayer's  Cases,  293)  ;  New  Hampshire  v.  Louisi- 
ana (1883,  108  U.  S.  76  ;  McClain's  Cases,  713) ;  South  Dakota  v.  North 
Carolina  (1904,  192  U.  S.  286;  McClain's  Cases,  2d  ed,,  713). 

Suits  against  Officers  or  Agents  of  United  States  or  State: 
United  States  v.  Lee  (1882,  106  U.  S.  196;  McClain's  Cases,  720) ;  Louisi- 
ana v.Jumel  (1882,  107  U.  S.  711). 

Cases  of  Diverse  Citizenship:  Hepburn  v.  Ellzey  {1805,  2  Cranch, 
445  ;  Thayer's  Cases,  348 ;  Marshall's  Decisions,  Dillon's  ed.,  48) ; 
Hooe  V.  Jamieson  (1897,  166  U.  S.  395 ;  McClain's  Cases,  734) ;  The 
Ohio  &>  Mississippi  Railroad  Company  \.  Wheeler  (1861,  I  Black,  286; 
McClain's  Cases,  737)  ;  St.  Louis  &'  Sati  Prancisco  Railway  Co.  v.  James 
(1896,  161  U.  S.  545;  McClain's  Cases,  739). 

229 


230  Federal  Jurisdiction.  [§  146 

145.  Constitutional  Enumeration. 

Bearing  in  mind  the  statement  already  made  that  no  federal 
court  can  have  jurisdiction  of  any  case  unless  it  is  one  of  the 
classes  of  cases  enumerated  in  the  federal  constitution  as  those 
to  which  the  judicial  power  of  the  federal  government  may  ex- 
tend, we  have  to  consider  briefly  the  enumeration  of  these 
classes  of  cases  found  in  the  federal  constitution.  In  this 
enumeration  (Const.  Art.  Ill,  §  2)  we  find  nine  classes  of  cases, 
which  are  considered  briefly  in  the  following  paragraphs  of  this 
chapter. 

^  146.  Cases  Arising  under  the  Federal  Constitution,  La-ws, 
and  Treaties. 

The  first  and  most  extensive  class  of  cases  described  as  of 
federal  cognizance,  are  those  "  in  law  and  equity  arising  under 
this  constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority."  The 
distinction  here  recognized  between  cases  in  law  and  cases  in 
equity  is  of  no  particular  significance  for  present  purposes.  In 
the  jurisprudence  of  England,  there  were  at  the  time  our  Con- 
stitution was  framed,  and  until  recently,  distinct  courts  of  law 
and  of  equity.  Law  and  equity  in  this  sense  are  simply  differ- 
ent divisions  of  jurisprudence ;  the  distinction  between  them 
depends  on  the  nature  of  the  case,  or  the  nature  of  the  relief 
which  the  court  may  grant.  Such  distinction  is  still  recognized 
in  some  of  the  states,  although  in  many  states  the  same  courts 
administer  both  law  and  equity.  By  the  use  of  these  two  terms 
in  the  federal  constitution,  it  was  only  intended  to  indicate  that 
both  law  and  equity  may  be  administered  in  the  federal  courts, 
if  the  case  is  one  otherwise  coming  within  the  jurisdiction  of 
those  courts.     (See  below,  §  168.) 

The  essential  description  of  the  cases  within  the  class  now 
under  consideration  is  that  they  are  cases  arising  under  the 
constitution,  laws,  or  treaties  of  the  United  States.     Such  a  case 


§  146]       Under  Constitution  and  Laws.        231 

may  involve  the  construction  of  the  federal  constitution  or  a  law 
or  treaty  of  the  United  States,  or  it  may  involve  the  determina- 
tion of  some  right,  privilege,  or  immunity  under  such  constitu- 
tion, law,  or  treaty.  In  either  event,  it  is  a  case  as  to  which  the 
federal  judicial  power  may  be  exercised.  For  instance,  if  a 
person  were  being  punished  by  state  authority  for  violating 
some  state  statute,  which  statute  was  unconstitutional  because 
in  conflict  with  the  provisions  of  the  federal  constitution,  such 
person  seeking  relief  as  against  the  unlawful  exercise  of  author- 
ity on  the  part  of  the  state  would  have  a  case  arising  under  the 
federal  constitution.  If  one  who  has  a  patent  from  the  United 
States  entiding  him  to  the  exclusive  use,  manufacture,  and  sale 
of  an  invention  should  desire  to  bring  suit  against  another  who 
was  infringing  his  right  under  such  patent,  the  case  would  be 
one  arising  under  the  laws  of  the  United  States,  for  it  is  only 
under  the  United  States  laws  that  a  patent  may  be  granted  and 
enjoyed,  and  the  case  would  therefore  be  one  within  the  possi- 
ble jurisdiction  of  the  federal  courts.  If  the  subject  of  a  foreign 
state  had  the  right  by  treaty  between  his  government  and  the 
government  of  the  United  States  to  inherit  property  in  the 
United  States,  and  his  right  to  thus  inherit  was  denied  to  him 
or  questioned  under  the  laws  of  a  state,  his  case  would  be  one 
arising  under  a  treaty,  and  therefore  one  as  to  which  the  federal 
courts  might  have  jurisdiction. 

It  is  to  be  noticed  that  it  is  not  essential  that  cases  of  this 
class  directly  involve  the  interpretation  of  the  federal  constitu- 
tion, statute,  or  treaty ;  it  is  enough  if  the  right  asserted  be  a 
right  dependent  upon  such  constitution,  statute,  or  treaty. 
Thus,  suits  by  or  against  federal  corporations  have  been  held  to 
be  cases  arising  under  the  laws  of  the  United  States,  for  a  fed- 
eral corporation  can  only  exist  by  virtue  of  federal  law  (  Osborn 
v.  Bank  of  United  States  and  Pacific  Railroad  Cases).  How- 
ever, national  banks,  although  they  are  federal  corporations, 
are  by  Congress  prohibited  from  resorting  to  the  federal  courts 
on  the  ground  that  they  are  federal  corporations,  and  must  sub- 
mit to  the  jurisdiction  of  the  state  courts  in  the  same  way  as 
corporations  organized  under  the  authority  of  the  states.     But 


232  Federal  Jurisdiction.  [§  147 

a  detailed  discussion  of  the  cases  which  belong  to  this  class 
is  not  practicable.  It  is  enough  to  indicate  their  general 
characteristics. 

147.    Cases  Affecting  Ambassadors,  etc. 

The  second  class  of  cases  of  federal  cognizance  embraces 
those  "  affecting  ambassadors,  other  public  ministers,  and  con- 
suls." These  officers  of  foreign  governments,  while  within  the 
limits  of  the  United  States,  are  entitled,  according  to  inter- 
national law,  to  some  exemption  from  the  ordinary  jurisdiction 
of  the  courts.  Ambassadors  and  other  public  ministers  are  the 
personal  representatives  of  the  foreign  governments  under  whose 
authority  they  have  come  into  the  limits  of  the  United  States, 
so  far  as  their  public  character  has  been  recognized  and 
acquiesced  in  by  this  government.  By  international  law  they 
are  regarded,  while  thus  authorized  and  recognized,  as  entirely 
exempt  from  the  jurisdiction  of  the  courts  ;  neither  civil  nor 
criminal  suits  may  be  prosecuted  against  them.  The  practical 
remedy  for  any  wrongs  which  they  may  commit  is  to  make 
complaint  to  the  state  department  of  the  federal  government, 
and,  if  sufficient  reparation  is  not  voluntarily  made,  the  repre- 
sentative may  be  dismissed  by  this  government,  or  on  complaint 
to  the  home  government  of  such  representative,  he  may  be 
recalled,  and  after  having  had  reasonable  opportunity  to  leave 
this  country,  may  be  treated  as  no  longer  entitled  to  any  im- 
munity from  procedure  in  the  courts. 

So  long  as  he  is  within  the  limits  of  the  United  States,  as  the 
recognized  representative  of  a  foreign  government,  the  foreign 
minister  according  to  international  law  is  entirely  outside  of  the 
jurisdiction  of  the  courts.  Therefore,  the  practical  effect  of 
this  provision  is  to  enable  the  federal  courts  to  interfere,  should 
any  state  court  improperly  attempt  to  exercise  jurisdiction  over 
a  foreign  ambassador  or  minister.  As  to  consuls,  however,  the 
case  is  different.  They  are  mere  agents,  not  representatives 
of  foreign  governments,  and  are  not  exempt  from  the  jurisdic- 
tion of  our  courts.  And  as  to  them,  the  result  of  this  provision 
is  to  enable  Congress  to  give  jurisdiction  with  reference  to  them 


§  148]        International  and  Admiralty.  233 

to  the  federal  courts,  should  it  see  fit  to  do  so  {B'drs  v.  Preston), 
Suits  by  foreign  ambassadors  or  public  ministers  or  consuls  may 
be  brought  in  the  Supreme  Court ;  or  as  individuals  they  may 
sue  in  any  other  court  having  general  jurisdiction  of  the  case. 

148.    Admiralty  Cases. 

The  extension  of  the  federal  judicial  power  "  to  all  cases  of 
admiralty  and  maritime  jurisdiction  "  can  better  be  understood 
if  it  is  stated  that  in  England  admiralty  courts  have  jurisdiction 
of  matters  on  the  high  seas  which  are  beyond  the  jurisdiction 
of  the  ordinary  courts.  The  purpose  of  giving  such  a  jurisdic- 
tion to  the  federal  courts  was  to  enable  them  to  exercise  the 
powers  of  admiralty  courts  in  England.  But  as  a  matter  of  fact 
the  jurisdiction  has  been  extended  by  construction,  so  that  it 
is  broader  in  scope  than  that  of  the  English  admiralty  courts. 
Admiralty  cases  are  those  brought  for  breaches  of  contract  relat- 
ing to  maritime  affairs,  or  for  torts  committed  on  the  high  seas 
or  other  waters  within  the  admiralty  jurisdiction,  or  for  the 
enforcement  of  the  peculiar  hens  recognized  by  courts  of  ad- 
miralty. The  admiralty  law  is  distinct  in  its  rules  and  methods 
of  procedure  from  both  the  law  and  equity  systems,  and  as  a 
separate  branch  of  the  law,  it  is  exclusively  administered  in  the 
federal  courts ;  that  is  to  say,  an  admiralty  case  cannot  be  tried 
in  the  state  courts.  It  is  true,  the  state  courts  may  give  the 
ordinary  legal  or  equitable  relief  between  the  parties  as  to  sub- 
ject-matter which  might  have  been  the  basis  for  a  proceeding 
in  admiralty ;  but  an  admiralty  case  as  such  cannot  be  tried 
save  in  the  federal  courts  upon  which  admiralty  jurisdiction  is 
conferred  by  acts  of  Congress. 

In  England  the  admiralty  jurisdiction  is  limited  to  the  high 
seas  and  navigable  waters  within  the  ebb  and  flow  of  the  tide; 
but  this  limitation  has  been  deemed  inapplicable  in  this  country, 
because  of  the  existence  of  lakes  and  rivers  capable  of  naviga- 
tion, and  over  which  extensive  foreign  commerce  is  conducted, 
in  which  the  tide  does  not  ebb  and  flow.  As  now  construed, 
the  admiralty  jurisdiction  extends  not  only  over  the  high  seas, 
but  over  all  of  the  navigable  waters  of  the  United  States  which 


2  34  Federal  Jurisdiction.  [§  149 

constitute  avenues  for  foreign  or  interstate  commerce  {The 
Steamboat  Magnolia).  Tiius,  tlie  Great  Lakes,  the  navigable 
rivers,  such  as  the  Mississippi  and  the  Hudson,  and  even  the 
canals,  are  within  the  admiralty  jurisdiction,  and  the  powers  of 
the  admiralty  courts  extend  to  the  determination  of  cases  relat- 
ing to  maritime  rights  or  transactions  on  all  such  waters. 

149.    Cases  to  vrhich  the  United  States  is  a  Party. 

The  provision  giving  to  the  federal  courts  power  as  to  "  con- 
troversies to  which  the  United  States  shall  be  a  party  "  simply 
authorizes  Congress  to  provide  for  trial  in  the  federal  courts  of 
suits  brought  by  or  against  the  United  States.  Prosecutions  for 
offences  committed  against  the  laws  of  the  United  States  are  of 
this  character,  as  are  also  suits  by  the  United  States  government 
to  enforce  penalties  and  forfeitures  for  violation  of  the  revenue 
or  postal  laws,  or  similar  statutes.  A  suit  against  a  federal 
officer  and  his  sureties  to  recover  a  penalty  under  his  bond  for 
breach  of  duty  would  come  within  the  same  description.  As 
plaintiff  the  United  States  may  also  under  this  provision  sue  in 
the  federal  courts  to  recover  damages  for  breach  of  contract,  or 
to  enforce  any  other  legal  obligation. 

It  is  important  to  notice  in  this  connection  that  a  sovereign 
government  cannot  be  sued  in  its  own  courts,  and  it  was  evi- 
dently not  the  intention  of  this  clause  of  the  constitution  to 
change  the  rule  in  this  respect  as  to  the  United  States.  There- 
fore, a  suit  against  the  United  States  cannot  be  maintained,  even 
in  the  federal  courts,  unless  under  some  express  authority.  The 
rule  is  this  :  that  the  ordinary  statutory  provisions  conferring 
jurisdiction  on  the  courts  in  certain  classes  of  cases  do  not 
authorize  suits  against  the  United  States,  for  it  is  to  be  presumed 
that  a  sovereign  government  will  do  justice  without  the  com- 
pulsion of  a  court ;  and  that,  moreover,  it  was  not  intended  to 
give  to  any  tribunal  a  coercive  power  with  reference  to  the 
government  itself. 

Yet,  as  it  is  within  the  legislative  authority  to  provide  for  the 
payment  of  just  claims  against  the  government.  Congress  may, 
if  it  sees  fit,  authorize  such  claims  to  be  prosecuted  in  courts 


§  i5o]  U.  S.  and  States  as  Parties.  235 

specially  designated  for  that  purpose,  and,  accordingly,  it  has 
created  a  Court  of  Claims  in  which  persons  claiming  that 
the  United  States  is  justly  indebted  to  them  may  prosecute 
their  demands,  and  have  the  justice  of  such  demands  legally 
investigated.  It  has  been  further  especially  provided  by  statute 
that  the  general  courts  of  the  United  States  may  exercise  much 
the  same  jurisdiction  as  to  claims  against  the  government  as  was 
conferred  upon  the  court  of  claims.  But  these  special  provisions 
authorize  only  the  determination  by  the  court  of  claims,  or  other 
court  having  the  same  authority,  of  the  legality  of  a  claim  ;  they 
do  not  authorize  the  enforcement  of  any  judgment  which  may 
be  rendered  against  the  United  States,  and  it  still  remains  for 
Congress  in  its  discretion  to  appropriate  the  money  necessary 
to  pay  such  judgments. 

The  immunity  of  the  United  States  from  suit  in  its  courts 
does  not  extend  to  its  officers  or  agents  claiming  to  act  under 
its  authority  {United  States  v.  Lee).  If,  as  matter  of  fact,  they 
act  without  authority,  they  may  be  sued  in  the  federal  or  state 
courts,  and  held  liable  as  individuals.  And  the  validity  of  the 
authority  which  they  claim  to  be  exercising  as  officers  or  agents 
of  the  federal  government  may  be  investigated.  The  executive 
or  legislative  department  cannot,  by  action  in  excess  of  its 
authority,  confer  upon  any  officer  or  agent  the  power  to  violate 
the  law. 

150.    Controversies  betrween  States. 

The  states  are  independent  of  each  other,  but,  since  they  are 
not  capable  of  negotiating  with  each  other,  or  having  foreign 
relations  with  reference  to  each  other,  it  is  provided  that  con- 
troversies between  them  may  be  determined  in  the  federal  courts. 
Such  controversies  have  usually  been  as  to  boundaries. 

As  will  be  noticed  in  the  next  section,  a  state  may  not  be 
sued,  even  in  a  federal  court,  by  its  own  citizens  or  the  citizens 
of  another  state  or  of  a  foreign  government  for  the  purpose  of 
compelling  it  to  pay  its  debts ;  but  if  one  state  has  a  claim 
for  money  against  another,  the  controversy  relating  to  such 
claim  is  a  controversy  between  states,  bringing  it  within  the 


236  Federal  Jurisdiction.  [§151 

scope  of  the  federal  jurisdiction.  Thus,  where  one  state  was 
the  owner  in  its  own  right  of  bonds  of  another  state,  it  was 
held  that  suit  on  such  bonds  could  be  maintained  by  the  one 
state  against  the  other  in  the  federal  courts  {South  Dakota  v. 
North  Carolina). 

151.    Controversies  between  a  State  and  Citizens  of 
another  State. 

Where  a  state  has  a  claim  of  any  kind  against  a  citizen  of 
another  state,  it  cannot  usually  prosecute  that  claim  in  its  own 
courts,  because  its  courts  cannot  get  jurisdiction  of  a  non- 
resident except  by  his  voluntary  appearance ;  and  the  state 
ought  not  to  be  compelled  to  submit  its  case  to  the  courts  of 
the  state  in  which  its  debtor  resides,  because  it  is  not  consistent 
with  the  dignity  of  a  state  that  it  be  compelled  to  submit  itself 
to  the  jurisdiction  of  the  courts  of  another  independent  state. 
Provision  is  therefore  properly  made  for  the  trial  of  such  cases 
in  a  federal  court. 

But  the  general  rule  already  announced  with  reference  to 
the  United  States,  that  a  sovereign  government  should  not  be 
subject  to  suit,  is  applicable  also  to  the  sovereign  states.  It 
could  not  have  been  intended  that  a  state  government  should 
be  subject  to  suit  by  private  individuals.  And  this  principle  is 
expressly  enunciated  in  Amendment  XI  in  which  it  is  pro- 
vided that  "  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens  of 
another,  or  by  citizens  or  subjects  of  any  foreign  state." 

Even  if  the  controversy  is  one  arising  under  the  constitution, 
laws,  or  treaties  of  the  United  States,  and  for  that  reason  would 
otherwise  be  within  the  jurisdiction  of  the  federal  courts,  such 
jurisdiction  is  excluded  by  Amendment  XI  if  the  suit  is  by 
private  individuals  or  corporations  against  a  state,  and  the  same 
reasoning  applies  to  a  suit  against  a  state  by  its  own  citizens, 
for,  although  this  class  of  cases  is  not  expressly  covered  by  the 
Eleventh  Amendment,  it  is  excluded  from  the  jurisdiction  of  the 
federal  courts  by  the  general  rule  that  a  sovereign  state  cannot 


§152]         Cases  of  Diverse  Citizenship.         237 

be  sued  except  by  its  own  consent  (ffims  v.  Louisiana). 
Whether  the  citizens  of  a  state  may  sue  the  state  in  its  own 
courts  will  depend  entirely  on  the  laws  of  the  state,  and  such 
authority  has  in  some  cases,  although  not  generally,  been 
granted.  The  conclusion  to  be  drawn  is  that  the  jurisdiction 
of  the  federal  courts  does  not  extend  to  suits  against  a  state,  no 
matter  what  be  the  nature  of  the  subject-matter,  unless  the  suit 
be  by  another  state  of  the  Union  or  by  a  foreign  state,  or  by 
the  United  States. 

152.    Controversies  between  Citizens  of  Different  States. 

The  jurisdiction  of  suits  in  which  the  party  or  parties  on  one 
side  are  citizens  of  a  different  state  from  that  of  the  party  or 
parties  on  the  other,  furnishes  the  larger  part  of  the  civil  busi- 
ness in  the  ordinary  federal  courts.  The  object  of  the  provi- 
sion with  reference  to  such  suits  is  to  secure  to  the  parties  in 
such  cases  a  trial  before  a  court  free  from  any  possible  prej- 
udice or  bias  on  account  of  the  citizenship  of  the  parties  on  the 
one  side  or  the  other. 

To  determine  the  citizenship  of  a  party,  in  order  to  ascertain 
whether  the  case  is  one  involving  diverse  citizenship  as  de- 
scribed in  the  constitutional  language,  the  test  now  applied  is 
that  of  the  Fourteenth  Amendment.  Prior  to  the  adoption  of 
that  amendment  there  may  have  been  some  uncertainty  as 
to  the  test  of  citizenship  in  a  state  ;  but  now  the  simple  rule  is 
to  ascertain  whether  the  party  in  question  is  a  citizen  of  the 
United  States  either  by  birth  or  naturalization,  and,  if  so, 
whether  he  has  a  legal  residence  in  the  state  of  which  he  claims 
to  be  a  citizen.  It  is  to  be  noticed  that  by  the  language  of  the 
constitution  the  controversy  must  be  between  citizens  of  differ- 
ent states,  that  is,  the  party  on  one  side  must  be  a  citizen  of  a 
different  state  from  that  of  which  the  other  is  a  citizen.  It  fol- 
lows that  controversies  between  a  citizen  of  one  state  and  a 
citizen  of  the  United  States  having  his  legal  residence  in  the 
District  of  Columbia  or  in  a  territory,  is  not  within  that  class 
of  cases,  for  it  is  not  a  controversy  between  citizens  of  different 
states,  the  District  of  Columbia  not  being  considered  a  state  in 


238  Federal  Jurisdiction.  [§153 

this  sense,  and  territories  of  course  being  excluded  by  the 
terms  used.  A  controversy  between  a  citizen  of  a  state  and  an 
aUen  would  not  fall  within  the  terms  of  this  provision,  but  it  is 
covered  by  the  last  clause  of  the  section  relating  to  controver- 
sies between  a  citizen  of  a  state  and  a  citizen  or  subject  of  a 
foreign  state. 

Under  the  clause  as  to  diverse  citizenship  a  corporation  is 
deemed  a  citizen  of  the  state  in  which  it  is  organized  and  au- 
thorized to  do  business.  For  some  purposes  a  corporation  is 
said  not  to  be  a  citizen,  as  that  term  is  used  in  other  sections 
of  the  constitution,  and  perhaps  it  is  only  by  a  fiction  that  a 
controversy  between  a  corporation  of  one  state  and  a  citizen  or 
corporation  of  another  can  be  said  to  be  a  controversy  between 
citizens  of  different  states  {Ohio,  etc.  R.  Co.  v.  Wheeler).  But 
it  is  well  settled  that,  for  the  purpose  of  determining  the  juris- 
diction of  the  federal  courts,  a  corporation  is  for  practical  pur- 
poses a  citizen  of  the  state  of  its  organization  and  under  the  laws 
of  which  it  is  authorized  to  transact  business.  While  a  cor- 
poration organized  in  one  state,  and  authorized  there  to  do 
business,  may  also  transact  business  in  another  state  by  acquies- 
cence or  express  permission  of  the  latter,  it  is  not,  however,  a 
corporation  of  that  state  with  reference  to  the  jurisdiction  of 
the  federal  courts  under  this  clause  (^St.  Louis^  etc.  R.  Co.  v. 
yames). 

153.    Controversies  under  Land  Grants  of  Different  States. 

The  provision  that  the  judicial  power  of  the  federal  govern- 
ment extends  to  controversies  between  citizens  of  the  same 
state  claiming  lands  under  grants  of  different  states  has  not 
given  rise  to  any  difficulties  of  interpretation,  although  it  was 
no  doubt  intended  to  cover  specific  classes  of  cases  which  it 
was  thought  would  be  likely  to  arise,  and  which,  by  reason  of 
the  fact  that  the  claims  would  be  made  under  the  laws  of  differ- 
ent states,  ought  to  be  determined  in  the  federal  courts. 


§  154]  Citizens  and  Aliens.  239 

154.    Controversies  between  a  State  and  Foreign  States,  or 
bet-ween  Citizens  and  Aliens. 

The  last  of  these  enumerations  of  grounds  for  jurisdiction  of 
the  federal  courts  includes  several  possible  classes  of  cases.  It 
is  difficult  to  conceive  of  a  controversy  between  a  state  and  a 
foreign  government.  But  if  such  controversy  could  arise,  de- 
terminable by  the  courts,  it  would  be  within  the  possible  juris- 
diction of  the  federal  courts.  If  a  foreign  government  sought 
to  sue  the  citizens  of  a  state,  such  suit  would  be  within  the 
scope  of  federal  jurisdiction.  Controversies  between  a  citizen 
of  a  state  and  a  citizen  or  subject  of  a  foreign  government,  that 
is,  suits  between  citizens  and  aliens,  are  of  frequent  occurrence, 
and  the  propriety  of  placing  them  within  the  general  scope  of 
federal  jurisdiction  is  self-evident. 


CHAPTER   XXVII. 

THE   EXERCISE   OF   FEDERAL  JUDICIAL   POWER. 

155.    References. 

J.  Story,  Constitution,  §§  1731-1747,  1 760-1 773  ;  J.  I.  C.  Hare,  Consti- 
tutional Law,  lect.  1 ;  T.  M.  Cooley,  Constitutional  Law  {3d  ed.),  139- 
152;  H.  C.  Black,  Constitutional  Law,  §  97;  ALirtin  v.  Hunter's  Lessee 
(1816,  I  Wheaton,  304;  3  Curtis' Decisions,  562;  McClain's  Cases,  746; 
Thayer's  Cases,  123);  Cohens  v.  Virginia  (1821,  6  Wheaton,  264;  5 
Curtis'  Decisions,  82 ;  Thayer's  Cases,  285 ;  Marshall's  Decisions,  Dil- 
lon's ed.,  357);  Gaines  v.  Ftientes  (1875,92  U.  S.  10;  McClain's  Cases, 
769). 

156.    Jurisdiction  by  Original  Suit. 

The  simplest  and  most  natural  method  of  providing  for  the 
exercise  of  federal  jurisdiction  as  to  classes  of  cases  which  are 
by  the  constitution  declared  to  be  within  the  scope  of  the  fed- 
eral judicial  power  is  by  providing  courts  in  which  such  suits 
may  be  originally  brought ;  and  there  are  courts  provided,  as 
described  in  the  next  chapter,  in  which  controversies  arising 
under  the  constitution,  laws,  or  treaties  of  the  United  States, 
and  cases  of  admiralty  and  maritime  jurisdiction,  and  suits  by 
the  United  States,  and  suits  by  a  state  against  another  state,  or 
against  the  citizens  of  another  state,  and  suits  by  a  citizen  of 
one  state  against  a  citizen  of  another  state,  and  by  a  citizen 
against  an  alien,  or  an  alien  against  a  citizen,  may  be  originally 
instituted.  The  facts  which  make  the  case  a  proper  one  for 
the  jurisdiction  of  the  court  in  which  it  is  brought  must  be 
stated,  and  the  particular  court  in  which  the  suit  is  instituted 
will  not  have  jurisdiction,  unless,  as  already  explained,  the  case 
is  one  within  the  enumeration  of  federal  judicial  power,  and 
also  one  which  may  be  tried  in  the  court  as  constituted. 

240 


§  157]  Removal.  241 

157.    Jurisdiction  by  Removal. 

Inasmuch  as  the  jurisdiction  of  the  federal  courts  in  the 
classes  of  cases  which  may  be  within  their  jurisdiction  is  not  ex- 
clusive, as  already  explained,  unless  expressly  so  declared,  suits 
may  be  properly  instituted  in  a  state  court  (see  above,  §  143) 
which  belong  to  some  of  the  classes  of  cases  of  which  a  fed- 
eral court  may  have  jurisdiction.  Under  the  rule  that  the 
court  which  first  takes  jurisdiction  of  the  case  should  be  allowed 
to  proceed  without  interference  from  any  other  court,  save  a 
court  of  appeal,  it  would  result  that  a  case  first  brought  in  a 
state  court,  for  instance,  by  a  citizen  of  that  state  against  a  citi- 
zen of  another  state,  or  an  alien,  would  be  finally  tried  and  de- 
termined in  the  state  court,  notwithstanding  it  was  a  case  of 
which  the  federal  courts  might  have  jurisdiction,  unless  some 
provision  were  made  for  the  removal  of  such  a  case  from  the 
state  court  to  a  federal  court  for  trial.  And  the  same  consider- 
ations apply  to  a  controversy  arising  under  the  constitution, 
laws,  or  treaties  of  the  United  States ;  for,  as  has  already  been 
said,  the  state  courts  are  not  excluded  from  the  determination 
of  such  controversies. 

Therefore,  it  is  provided  by  the  statutes  of  the  United  States, 
that  the  party  against  whom  a  suit  is  brought  in  a  state  court, 
which  is  of  such  character  by  reason  of  the  subject-matter  or 
the  nature  of  the  parties  that  it  might  have  been  brought  in  a 
federal  court,  may  have  it  removed  to  the  federal  court  for 
trial  {Games  v.  Fueiites).  This  removal  is  secured  by  showing 
to  the  state  court  the  facts  which  make  the  case  a  proper  one 
for  removal,  and  asking  that  it  be  transferred  to  the  proper 
federal  court.  But  even  if  the  state  court  refuses  to  grant  the 
transfer  in  a  proper  case,  such  transfer  may  be  secured  by  ap- 
plication to  the  federal  court  to  which  the  party  applying  has  a 
right  to  have  it  removed.  Such  removal  must,  in  general,  be 
applied  for  before  further  proceedings  are  taken  in  the  state 
court,  and  if  the  case  is  allowed  to  proceed  before  a  removal  is 
asked,  it  is  too  late  to  secure  trial  thereof  in  the  federal  court. 
But  where  the  party  asking  to  have  the  case  removed  can  show 

16 


242      Original  and  Appeal  Jurisdiction.   [§  158 

that  there  is  some  prejudice  or  local  influence  making  it  im- 
proper that  it  be  tried  in  the  state  court,  he  may  secure  a  re- 
moval at  a  later  stage  in  the  proceedings,  and  thus  have  a  trial 
in  a  tribunal  free  from  such  prejudice  or  local  influence.  It 
is,  of  course,  impossible  to  state  in  detail  the  conditions  and 
methods  for  removal  of  cases  from  the  state  to  the  federal 
courts,  but  the  general  principles  in  accordance  with  which  such 
removals  are  allowed  have  been  sufficiently  indicated. 

158.    Jurisdiction  by  Appeal  from  State  to  Federal  Courts. 

The  jurisdiction  of  the  federal  courts  in  the  classes  of  cases 
placed  within  their  jurisdiction  by  the  federal  constitution  may 
be  exercised,  however,  not  only  by  trial  in  a  federal  court  but 
also  by  means  of  an  appeal  from  a  state  court  to  a  federal  court, 
and  such  an  appeal  is  authorized  by  statute  where  the  construc- 
tion of  the  constitution,  laws,  or  treaties  of  the  United  States  is 
involved,  or  some  right,  privilege,  or  immunity,  is  claimed  under 
such  constitution,  laws,  or  treaties  {Cohens  v.  Virg'mia  and 
Martin  v.  Hunter'' s  Lessee).  It  is  evident  that  there  would  be 
no  proper  occasion  for  such  an  appeal  unless  the  decision  of 
the  state  court  should  be  against  the  party  who  makes  some 
claim  by  reason  of  the  constitution,  laws,  or  treaties  of  the  United 
States  or  is  asserting  some  right,  privilege,  or  immunity  by 
virtue  thereof.  The  theory  is  that  it  is  only  when  a  state  court 
has  put  a  construction  on  some  provision  of  the  constitution, 
laws,  or  treaties  which  is  contrary  to  that  which  the  unsuccessful 
party  claims  should  have  been  put  upon  it,  and  such  construc- 
tion is  injurious  to  him ;  or  when  the  state  court  has  denied 
some  right,  privilege,  or  immunity  claimed  under  federal  author- 
ity, that  an  appeal  to  the  federal  courts  is  necessary.  Such  an 
appeal  can  only  be  taken  after  the  unsuccessful  party  has  carried 
the  case  through  the  state  courts  to  the  court  of  last  resort,  and 
is  still  unsuccessful. 

Such  an  appeal  from  a  state  court  can  only  be  taken  to  the 
Supreme  Court  of  the  United  States.  None  of  the  lower  federal 
courts  have  authority  to  review  on  appeal  the  decisions  of  the 


§  158]  Appeal.  243 

state  courts,  and,  as  will  appear  from  what  has  been  said,  the 
Supreme  Court  exercises  such  appellate  jurisdiction  only  with 
reference  to  federal  questions.  In  cases  which  are  declared  to 
be  within  the  jurisdiction  of  the  federal  courts  in  order  to  pro- 
vide a  fair  court  for  their  trial,  and  which  might  have  been 
originally  brought  in  or  removed  to  a  federal  court,  no  right  of 
appeal  from  the  state  to  a  federal  court  is  provided  for.  If  the 
parties  have  seen  fit  to  submit  their  controversy  to  a  state  court, 
neither  of  them  can  afterwards  complain  that  such  court  did 
not  afford  him  a  fair  trial. 


CHAPTER   XXVIII. 
APPORTIONMENT   OF   FEDERAL  JURISDICTION. 

159.    References. 

J.  Story,  Constitution,^  %%  1636,  1701-1731 ;  J.  I.  C.  Hare,  Constitutional 
Law,  lects.  liii,  liv ;  James  Kent,  Commentaries,  lects.  xv,  xvii;  T.  M. 
Cooley,  Constitutional  Law,  ch.  vi ;  H.  C.  Black,  Constitutional  Law, 
§§85-87,  91,  92;  Ross  V.  Mclntyre  (1891,   140  U.  S.  453). 

160.    The  Federal  Judicial  System. 

In  pursuance  of  the  power  given  to  Congress  under  Article 
III,  §  I,  of  the  constitution,  to  ordain  and  establish  courts 
inferior  to  the  Supreme  Court,  in  which,  together  with  the 
Supreme  Court,  which  is  expressly  provided  for  in  the  same 
article,  the  judicial  power  of  the  United  States  shall  be  vested. 
Congress  has  established  a  system  of  courts  of  three  grades, 
known  as  the  district  courts,  the  circuit  courts,  and  the  circuit 
courts  of  appeal,  the  first  two  classes  being  courts  of  original 
jurisdiction,  and  the  last  class  courts  of  appellate  jurisdiction ; 
and  these  courts,  together  with  the  Supreme  Court,  exercise  all 
the  jurisdiction  authorized  by  the  constitution  to  be  exercised 
by  the  federal  judicial  power,  so  far  as  that  jurisdiction  is  con- 
ferred on  any  federal  tribunal.  The  scope  of  the  jurisdiction 
of  the  Supreme  Court  is  determined  by  the  constitution,  as  will 
be  explained  in  a  subsequent  section  ;  the  scope  of  jurisdiction 
of  each  of  the  other  classes  of  courts  is  determined  by  statutes, 
the  first  of  which  was  enacted  in  1789.  It  will  not  be  possible 
to  go  into  the  details  as  to  the  particular  classes  of  cases  which 
may  be  determined  in  each  of  these  classes  of  courts ;  but  the 
general  nature  of  the  jurisdiction  conferred  upon  each  may 
be  so  described  that  the  scope  of  their  jurisdiction  shall  be 
intelligible. 

244 


§  1 62]  Federal  District  Courts.  245 

161.    Federal  District  Courts. 

The  class  of  federal  courts  of  lowest  grade  is  composed  of 
the  district  courts.  The  United  States  is  divided  into  districts, 
no  one  of  them  embracing  more  than  one  state,  although  many 
of  the  states  are  divided  into  two  or  more  districts  ;  and  in  each 
district  is  appointed  a  district  judge,  who  must  be  a  resident  of 
the  district,  and  who  holds  a  district  court  at  one  or  more  places 
in  the  district.  The  circuit  judge  may  hold  the  district  court 
in  place  of  the  district  judge,  and  it  is  provided  that  the  judge 
of  another  district  may  by  delegation  serve  temporarily  in  a 
district  other  than  that  for  which  he  is  appointed.  But  with 
few  exceptions  the  district  court  is  held  at  the  place  or  places 
designated  by  law  within  the  district  by  the  judge  appointed 
for  that  district. 

The  most  important  jurisdiction  conferred  upon  the  district 
courts  is  that  of  trying  prosecutions  for  crimes  under  the  laws 
of  the  United  States  which  are  not  punishable  by  capital  punish- 
ment. The  circuit  court  only  can  try  prosecutions  for  capital 
crimes,  but  it  has  concurrent  jurisdiction  with  the  district  court 
as  to  crimes  not  capital.  Nevertheless,  criminal  prosecutions 
in  cases  not  capital  are  usually  conducted  in  the  district  courts. 
Suits  by  the  United  States  are  authorized  to  be  brought  in  the 
district  courts,  and  such  courts  have  jurisdiction  for  the  trial  of 
civil  cases  in  admiralty  and  prize  cases.  Jurisdiction  is  given 
to  the  district  courts  as  to  some  other  matters,  but  the  classes 
of  cases  here  enumerated  are  those  of  principal  importance. 

162.    Federal  Circuit  Courts. 

In  one  or  more  places  in  each  district  is  held  a  circuit 
court  of  the  United  States,  presided  over  by  any  one  of  the 
following  federal  judges,  to  wit,  the  justice  of  the  Supreme 
Court  assigned  to  the  circuit,  one  of  the  two  or  more  circuit 
judges  of  the  circuit,  and  the  district  judge  of  the  district  in 
which  the  circuit  court  is  held.  Any  two  of  these  judges  may 
together  hold  the  circuit  court,  but  any  one  of  them  is 
competent  and  is  qualified  to  do  so.     The  number  of  circuits 


246  Federal  Courts.  [§  162 

into  which  the  districts  are  grouped  corresponds  to  the  num- 
ber of  justices  of  the  Supreme  Court,  and  each  of  such  justices 
is  permanently  assigned  to  a  particular  circuit.  Formerly  it 
was  the  practice  for  these  justices  to  preside  over  the  circuit 
courts  in  their  respective  circuits,  but  this  practice  has  fallen 
into  disuse,  although  the  authority  remains.  The  circuit 
judges,  two  or  more  of  whom  are  appointed  for  each  cir- 
cuit, are  also  judges  of  the  circuit  court  of  appeals,  described 
in  the  succeeding  section,  and  their  time  is  principally  devoted 
to  the  discharge  of  their  duties  in  connection  with  those  courts, 
so  that,  as  a  rule,  the  ordinary  terms  of  the  circuit  court  in  any 
particular  district  are  presided  over  by  the  district  judge  for  the 
district  in  which  the  circuit  court  is  held. 

As  stated  in  the  preceding  section  in  describing  the  criminal 
jurisdiction  of  the  district  courts,  the  circuit  courts  have  juris- 
diction to  try  prosecutions  for  any  crimes  against  the  laws 
of  the  United  States,  and  they  have  exclusive  jurisdiction  in 
prosecutions  for  crimes  punishable  capitally.  But,  except  as  to 
capital  crimes,  they  do  not  usually  try  criminal  cases.  Their 
civil  jurisdiction  includes  cases  arising  under  the  constitution, 
laws,  or  treaties  of  the  United  States,  provided  the  matter  in 
dispute  exceeds  the  sum  or  value  of  ^2,000,  and  controversies 
between  citizens  of  different  states,  or  between  citizens  of  a 
state  and  foreign  states,  citizens,  or  subjects,  with  a  like  limita- 
tion as  to  the  amount  in  controversy.  Cases  of  either  of  these 
classes  which  might  originally  have  been  brought  in  a  circuit 
court,  if  brought  in  a  state  court  may  be  removed  by  the  de- 
fendant into  a  circuit  court  for  trial  (see  above,  §  157).  Suits 
by  the  United  States  may  be  brought  in  the  circuit  court  in- 
stead of  in  the  district  court,  if  the  amount  in  controversy 
exceeds  ^2,000.  There  are  cases  arising  under  the  laws  of 
the  United  States  which  may  be  brought  in  the  circuit  court 
without  regard  to  the  amount  in  controversy  :  such  as  suits  under 
the  patent  or  copyright  laws,  the  revenue  laws,  and  the  postal 
laws,  and  proceedings  under  the  interstate  commerce  law,  the  act 
to  protect  trade  and  commerce  against  unlawful  combinations, 
trusts,  and  conspiracies,  and  under  the  immigration  acts. 


§  163]         Circuit  and  Circuit  Appeal.  247 

It  is  apparent,  therefore,  that  the  jurisdiction  of  the  circuit 
court  is  usually  exercised  in  civil  cases,  arising  under  the  consti- 
tution, laws,  or  treaties  of  the  United  States,  and  in  cases  involv- 
ing controversies  between  citizens  of  different  states,  or  between 
citizens  and  aliens ;  and  that  this  jurisdiction  may  be  exercised, 
either  by  trying  cases  originally  brought  in  this  court,  or  those 
removed  from  state  courts  ;  but  that,  save  in  cases  arising  under 
the  patent  and  copyright  laws,  the  revenue  laws,  the  postal 
laws,  and  a  few  other  classes  of  cases,  the  amount  in  contro- 
versy must  exceed  ;^2,ooo,  to  give  the  circuit  court  jurisdiction. 

163.    Federal  Circuit  Courts  of  Appeals. 

The  district  courts  and  circuit  courts,  as  above  described, 
exercise  only  original  and  not  appellate  jurisdiction.  The 
courts  of  these  two  classes,  together  with  the  Supreme  Court, 
constituted  the  judicial  department  of  the  federal  government 
until  189T,  when  a  new  court  was  created,  called  the  circuit 
court  of  appeals,  to  be  held  at  one  or  more  places  in  each 
circuit,  presided  over  by  the  three  judges  authorized  to  hold 
the  circuit  courts  throughout  the  circuit,  that  is,  the  justice  of 
the  Supreme  Court  assigned  to  the  circuit,  and  the  two  circuit 
judges  appointed  for  the  circuit.  But  by  acts  of  Congress 
passed  from  time  to  time  the  number  of  circuit  judges  in  many 
of  the  circuits  has  been  increased  to  three,  and  in  practice  the 
justices  of  the  Supreme  Court  do  not,  except  in  rare  instances, 
serve  in  this  capacity.  Where  there  are  only  two  circuit  judges, 
or  in  case  one  or  more  of  the  circuit  judges  is  incapacitated  to 
sit,  the  requisite  number  of  judges  is  provided  by  assigning 
district  judges  from  districts  within  the  circuit  to  serve  tem- 
porarily. In  no  instance  does  the  judge  who  has  tried  a  case 
sit  in  the  circuit  court  of  appeals  on  the  hearing  of  an  appeal  in 
such  case. 

Before  the  creation  of  the  circuit  courts  of  appeals,  the  ap- 
pellate jurisdiction  over  the .  district  and  circuit  courts  was 
exercised  exclusively  by  the  Supreme  Court,  save  that  as  to  a 
few  classes  of  cases  appeals  might  be  taken  from  the  district  to 
the  circuit  courts.     When  the  circuit  courts  of  appeals  were 


248  Federal  Courts.  [§  164 

established,  the  appellate  jurisdiction  of  the  circuit  courts  was 
transferred  to  them,  and  they  were  given  also  a  considerable 
portion  of  the  appellate  jurisdiction  formerly  exercised  by  the 
Supreme  Court,  the  object  of  establishing  the  circuit  courts  of 
appeals  being  to  relieve  the  Supreme  Court  of  some  of  the 
business  with  which  it  was  found  to  be  overburdened. 

The  circuit  courts  of  appeals  have  in  general  jurisdiction  to 
hear  appeals  from  the  district  and  circuit  courts  in  suits  which 
are  between  citizens  of  different  states,  or  citizens  of  a  state  and 
aliens  ;  also  in  admiralty  cases  and  cases  under  the  patent,  copy- 
right, revenue,  or  postal  laws,  and  in  criminal  cases  where  the 
crime  is  not  capital  or  otherwise  infamous,  in  which  case  the 
appeal  is  to  the  Supreme  Court.  With  few  exceptions  the  deci- 
sion of  a  circuit  court  of  appeals,  in  a  case  properly  appealed 
to  it,  is  conclusive,  and  no  further  appeal  to  the  Supreme  Court 
of  the  United  States  can  be  taken.  The  circuit  courts  of  ap- 
peals do  not  entertain  appeals  from  state  or  territorial  courts,  but 
only  from  the  district  and  circuit  courts.  But  an  exception  is 
made  in  case  of  the  United  States  court  in  the  Indian  Terri- 
tory, which  is  put  on  the  same  basis  as  the  district  and  circuit 
courts. 

164.    The  Federal  Supreme  Court. 

Under  the  statutory  provisions  now  in  force,  the  Supreme 
Court  consists  of  a  chief  justice  and  eight  associate  justices,  and 
sits  only  at  the  national  capital.  By  the  constitution  (Art.  Ill, 
§  2,  ^  2)  the  Supreme  Court  has  both  original  and  appellate 
jurisdiction  ;  original  "  in  all  cases  affecting  ambassadors,  other 
public  ministers  and  consuls,  and  those  in  which  a  state  shall 
be  a  party,"  and  appellate  in  other  cases  as  provided  by  law. 

The  original  jurisdiction  of  this  court  cannot  be  extended  by 
statute  :  but  by  statute  it  is  made  exclusive  in  some  of  those 
cases  mentioned  in  the  constitution,  to  wit,  cases  against  am- 
bassadors or  public  ministers  or  their  domestics,  and  also 
cases  to  which  a  state  is  a  party,  except  between  a  state  and 
its  citizens,  or  between  a  state  and  citizens  of  other  states  or 
aliens.     It  has  already  been  explained   (above,    §    147)  that, 


§  164]  The  Supreme  Court.  249 

according  to  the  rules  of  international  law,  ambassadors  and 
public  ministers  are  exempt  from  suit  in  the  courts  of  the 
country  to  which  they  are  accredited  and  by  which  they 
are  received,  so  that  the  only  practical  effect  of  giving  to 
the  Supreme  Court  exclusive  jurisdiction  in  such  cases  is  to 
prevent  any  other  court  from  entertaining  jurisdiction.  It 
is  to  be  noticed,  however,  that  this  does  not  apply  to  consuls. 
But,  on  the  other  hand,  the  original  jurisdiction  of  the  Supreme 
Court  in  cases  affecting  consuls  is  not  made  exclusive,  so  that 
it  is  not  necessary  that  suits  against  them  be  brought  in  the 
Supreme  Court. 

As  to  cases  in  which  a  state  is  a  party,  the  effect  of  the 
statutory  provision  is  to  give  the  Supreme  Court  exclusive  original 
jurisdiction  where  a  suit  is  brought  against  a  state,  that  is,  where 
a  suit  is  between  states,  or  by  the  United  States  against  a  state, 
while,  on  the  other  hand,  if  the  suit  is  by  a  state  against  citizens 
of  another  state  or  aliens,  the  suit  need  not  be  in  the  Supreme 
Court,  but  may  be  in  some  other  federal  court,  if  any  such 
court  has  jurisdiction. 

The  appellate  jurisdiction  of  the  Supreme  Court  is  extensive 
and  complicated,  but  may  briefly  be  described  as  follows:  (i) 
It  has  jurisdiction  of  appeals  from  the  district  or  circuit  courts 
in  prize  cases,  in  cases  of  conviction  of  a  capital  or  otherwise 
infamous  crime,  in  cases  involving  the  construction  or  applica- 
tion of  the  constitution  of  the  United  States,  and  in  cases  in 
which  the  constitutionality  of  any  law  of  the  United  States, 
or  the  validity  or  construction  of  any  treaty  made  under  its 
authority  is  drawn  in  question ;  also  in  cases  in  which  the  con- 
stitution or  a  law  of  a  state  is  claimed  to  be  in  contravention  of 
the  constitution  of  the  United  States.  (2)  It  has  jurisdiction 
of  appeals  from  a  circuit  court  of  appeals  in  any  case  certified 
by  that  court  to  the  Supreme  Court,  or  removed  from  that  court 
to  the  Supreme  Court  by  direction  of  the  latter,  and  in  some 
other  cases  in  which  appeals  to  the  circuit  courts  of  appeals  are 
not  final.  (3)  It  has  jurisdiction  of  appeals  from  state  courts 
of  last  resort  in  cases  involving  a  federal  question,  where  the 
decision  of  the  state  court  is  against  the  validity  of  a  statute  or 


250  Federal  Courts.  [§165 

treaty  of  or  authority  exercised  under  the  United  States,  or  in 
favor  of  the  validity  of  a  statute  of  or  authority  exercised  under 
any  state,  where  the  vahdity  of  such  statute  or  authority  is 
called  in  question  as  being  repugnant  to  the  constitution,  laws, 
or  treaties  of  the  United  States,  or  where  the  decision  is  against 
any  title,  right,  privilege,  or  immunity  claimed  under  the  consti- 
tution, statutes,  treaties,  or  authority  of  the  United  States.  (See 
above,  §  158.)  (4)  It  has  jurisdiction  of  appeals  from  the  Su- 
preme Court  of  the  District  of  Columbia,  and  from  the  supreme 
courts  of  the  territories,  with  limitations  as  to  amount  in  con- 
troversy which  need  not  be  here  particularly  specified.  (5)  It 
has  jurisdiction  of  appeals  from  the  court  of  claims,  and  from 
district  or  circuit  courts  in  cases  against  the  United  States, 
with  some  limitation  as  to  the  amount  in  controversy.  There 
are  some  other  classes  of  cases  in  which  the  Supreme  Court 
exercises  an  appellate  jurisdiction  which  need  not  be  here  par- 
ticularly enumerated. 

165.  Other  Courts  Created  by  Congress. 

The  courts  which  have  been  described  in  this  chapter,  the 
Supreme  Court  being  one  of  them,  constitute  all  the  courts 
which  exercise  the  judicial  power  of  the  federal  government,  as 
specifically  prescribed  in  the  constitution.  But  in  the  exercise 
of  the  authority  vested  in  Congress,  either  expressly  or  by  im- 
plication, in  other  portions  of  the  constitution.  Congress  has 
created  other  judicial  tribunals.  Under  the  power  to  legislate 
for  the  District  of  Columbia,  it  has  provided  a  system  of  courts 
for  that  district.  Under  the  authority  to  make  rules  and  regu- 
lations for  the  government  of  territory  of  the  United  States, 
outside  of  the  Hmits  of  any  state,  it  has  provided  for  terri- 
torial courts.  Under  authority  derived  by  certain  treaties  with 
Turkey,  China,  and  some  other  non-Christian  nations,  it  has 
given  jurisdiction  to  consuls  of  the  United  States  in  those 
countries  to  try  citizens  of  the  United  States  for  offences  com- 
mitted there,  and  also  to  determine  civil  suits  to  which  citizens 
of  the  United  States  are  parties.  (See  I^oss  v.  Mclniyre.) 
And  under  the  authority  to  provide  for  the  payment  of  claims 


§  1 66]  Additional.  251 

against  the  United  States,  it  has  created  a  court  of  claims,  in 
which  claimants  may  have  an  adjudication  as  to  the  justice  and' 
legality  of  their  demands.     (See  above,  §  149.) 

166.  United  States  Commissioners  and  Magistrates. 

The  circuit  courts  may  appoint  commissioners,  often  termed 
United  States  Commissioners,  who  are  authorized  to  exercise 
various  powers  conferred  upon  them,  such  as  the  taking  of 
affidavits,  the  issuance  of  warrants  of  arrest  for  crime  under  the 
laws  of  the  United  States,  and  the  taking  of  bail  in  such  cases. 
These  commissioners  are  also  given  certain  powers  in  admiralty 
cases,  and  in  regard  to  other  matters,  which  need  not  be 
particularly  described. 

The  justices  and  judges  of  the  federal  courts,  and  the  judges, 
justices  of  the  peace,  and  other  magistrates  of  a  state,  as  well  as 
the  United  States  Commissioners  just  described,  are  authorized 
to  cause  the  arrest  of  offenders  against  the  laws  of  the  United 
States  and  to  admit  them  to  bail. 

Various  courts  and  judges  of  the  United  States  and  of  the 
states  are  authorized  to  issue  certificates  of  naturalization  to 
aliens  applying  therefor  and  complying  with  the  naturalization 
laws.     (See  above,  §  100.) 


CHAPTER   XXIX. 
THE  LAW   ADMINISTERED   IN   THE    FEDERAL  COURTS. 

167.    References. 

J.  Story,  Constitution,  §§  1748-17 59;  J.  I.  C.  Hare,  Constitutional  Law ^ 
lect.  li ;  James  Kent,  Commentaries,  lect.  xvi ;  James  Bryce,  American 
Commonwealth,  ch.  xxiii;  T.  M.  Cooley,  Constitutional  Law  (3d  ed.),  152, 
159;  H.  C.  Black,  Constitutional  Law,  §§  93-96;  The  Federalist,  No.  82; 
Swift  V.  Tyson  (1842,  16  Peters,  i  ;  14  Curtis'  Decisions,  166;  McClain's 
Cases,  796) ;  Railroad  Company  v.  National  Bank  (1880,  102  U.  S.  14; 
McClain's  Cases,  800);  Burgess  v.  Seligman  {\^%i,  107  U.  S.  20,  Mc- 
Clain's Cases,  805;  Thayer's  Cases,  1545);  Smith  v.  Alabama  {1888, 
124  U.S.  465;  McClain's  Cases,  812  ;  Thayer's  Cases,  2068);  Western 
Union  Telegraph  Co.  v.  Call  Publishing  Co.  (1901,  181  U.  S.  92;  21  Sup. 
Court  Reporter,  561);  Riggs  v.  Johnson  County  (1867,  6  Wallace,  166; 
McClain's  Cases,  784). 

168.  Distiuction  bet'ween  Law  and  Equity. 

In  actions  at  law  the  federal  courts  follow  in  general  the 
procedure  provided  for  their  own  tribunals  by  the  states  in 
which  they  sit ;  but  in  equity  cases  the  federal  courts  follow 
their  own  rules  of  procedure,  which  are  founded  on  the  prac- 
tice in  the  chancery  courts  of  Great  Britain  as  they  existed  at 
the  time  of  the  adoption  of  the  federal  constitution.  The 
result  is  that  the  equity  practice  of  the  federal  courts  is  uniform 
throughout  the  Union,  and  is  governed  by  the  rules  and  deci- 
sions of  the  Supreme  Court  of  the  United  States ;  while  in  law 
cases  the  practice  is  not  uniform,  but  depends  on  the  laws  of 
the  various  states  in  which  the  courts  are  held.  This  distinc- 
tion depends  on  statutory  provisions,  and  is  made  for  conven- 
ience in  the  practical  administration  of  justice.  (See  above, 
§  146.) 

169.  The  Common  Law  and  the  Law  of  the  States. 

In  cases  arising  under  the  constitution,  laws,  or  treaties  of 
the  United  States,  and  depending  for  their  decision  on  the 

252 


§  169]  Common  Law.  253 

construction  thereof,  the  federal  courts  follow  their  own  judg- 
ment, guided,  of  course,  by  the  decisions  of  the  Supreme  Court 
of  the  United  States.  But  many  cases,  particularly  cases  which 
are  in  the  federal  courts  by  reason  of  diversity  of  citizenship  of 
the  parties,  do  not  involve  the  constitution,  laws,  or  treaties 
of  the  United  States,  or  any  rights  arising  under  them,  but  only 
the  application  of  general  principles  of  law,  or  the  construction 
of  the  constitutions  or  statutes  of  the  different  states ;  and  in 
these  cases  the  federal  courts  apply  the  general  principles  of 
law,  or  the  constitutional  or  statutory  provisions  which  would 
have  been  applied  had  such  cases  been  tried  in  the  state  courts. 
The  federal  courts  follow  the  decisions  of  the  state  courts  in 
the  construction  of  their  own  constitutions  and  statutes,  and  also 
in  cases  involving  some  established  rule  of  property.  But  in 
other  cases,  which  are  to  be  decided  according  to  the  general 
principles  of  law,  the  federal  courts  determine  for  themselves 
what  such  general  principles  are,  without  feeUng  themselves 
bound  to  follow  the  decisions  of  the  particular  state  {^Railroad 
Company  v.  National  Bank  and  Burgess  v.  Seligman), 

In  all  the  states  except  Louisiana  the  common-law  system, 
that  is,  the  English  system  of  law,  is  recognized  as  in  force,  so 
far  as  consistent  with  the  institutions  and  conditions  under 
which  we  live ;  while  in  that  state  the  prevailing  system  of  law 
is  that  known  as  the  civil  law,  as  embodied  in  the  Code  Na- 
poleon, which  was  in  force  in  France  at  the  time  the  Louisiana 
Territory  was  acquired  by  the  United  States.  Therefore,  in 
cases  tried  in  the  federal  courts  sitting  in  any  of  the  states 
except  Louisiana,  it  is  presumed  that  the  rights  of  parties  are 
determined  by  tne  common  law,  save  as  it  may  have  been 
modified  or  superseded  by  state  statutes ;  that  is,  the  common 
law  is  the  general  law  for  each  of  these  states  {Smith  v.  Ala- 
bama). It  can  hardly  be  said,  however,  that  tliere  is  a  com- 
mon law  of  the  United  States,  for  so  far  as  cases  are  to  be 
determined  by  general  law,  in  the  absence  of  statutory  provi- 
sions, the  federal  courts  are  presumed  to  follow  the  general 
law  as  it  exists  in  the  state  where  the  federal  court  sits,  or  in 
the  state  according  to  the  law  of  which  the  case  is  to  be  de- 


254  Federal  Law.  [§  170 

cided,  although,  as  already  indicated,  the  federal  courts  are  not 
bound  by  the  decisions  of  the  state  courts  interpreting  the  gen- 
eral law,  except  so  far  as  the  decisions  of  the  state  courts  have 
become  rules  of  property.  A  subject-matter  which  is  placed 
within  the  control  of  Congress,  such  as  interstate  commerce,  is 
assumed  to  be  subject  to  the  general  rules  of  the  common  law 
so  far  as  Congress  has  not  legislated  with  reference  to  it.  (See 
Western  Union  Telegraph  Co.  v.  Call  Publishing  Co.) 

There  are  no  common-law  crimes  against  the  United  States, 
that  is  to  say,  no  acts  are  punishable  in  the  federal  courts  as 
crimes  save  as  they  have  been  made  criminal  by  federal  stat- 
utes. However,  when  a  punishment  is  provided  by  federal 
statute  for  an  act  generally  described  by  the  terms  used  in  the 
common-law  definitions  of  crimes,  the  courts  will  consider  the 
common-law  definition  as  indicating  the  scope  of  the  language 
used  in  the  statute. 

170.    Conflicting  Jurisdiction  of  Federal  and  State  Courts. 

It  seldom  occurs  that  there  can  be  any  conflict  of  jurisdic- 
tion between  a  federal  and  a  state  court.  Any  apparent  con- 
flict is  usually  determined  by  the  application  of  the  principle 
of  comity  (see  above,  §  143),  in  accordance  with  which  one 
court  will  not  interfere  with  or  take  jurisdiction  over  a  matter 
as  to  which  another  court  has  already  acquired  jurisdiction. 
But  should  any  conflict  as  to  jurisdiction  arise,  the  final  author- 
ity to  decide  must  necessarily  be  in  the  federal  court,  and  no 
state  court  can  interfere  with  the  proceedings  in  a  federal  court, 
nor  with  officers  of  a  federal  court  acting  in  pursuance  of  its 
orders  or  judgments  {Riggs  v.  Johfison  County).  Redress  for 
wrongs  committed  by  an  officer  acting  under  the  federal  author- 
ity should  be  sought  in  the  federal  courts.  But  on  the  other 
hand,  a  federal  officer,  acting  without  authority,  may  be  called 
to  account  in  a  state  court  for  any  wrong  done  or  injury  com- 
mitted, subject  to  the  power  of  the  federal  courts  to  review  or 
inquire  into  the  case  for  the  purpose  of  determining  whether 
the  officer  was  justified  by  federal  authority  in  what  he  has  done 
or  has  attempted  to  do. 


§  i7i]  Conflicting  Jurisdiction.  255 

171.    Authority  of  the  Judiciary  to  Pass  upon  the  Constitu- 
tionality of  Statutes. 

In  discussing  the  relations  of  the  departments  of  government 
to  each  other,  it  has  already  been  indicated  that,  in  a  case 
properly  coming  before  a  court,  the  court  has  the  power  to  de- 
termine the  constitutionality  of  a  statute.  (See  above,  §  7.) 
This  power  is  exercised  by  the  federal  courts  with  reference  to 
statutes  passed  by  Congress,  as  well  as  by  state  courts  in  deter- 
mining the  constitutionality  of  state  statutes,  and  no  further  dis- 
cussion of  the  subject  is  necessary.  It  is  sufficient  to  say  that 
neither  the  legislative  nor  the  executive  department  of  the  fed- 
eral government  is  independent  of  the  constitution,  and  that, 
in  the  decision  of  a  case  properly  before  it,  a  court  may  prop- 
erly determine  whether  the  action  of  Congress  or  of  an  officer 
of  the  executive  department  is  in  violation  of  the  constitution, 
and  therefore  invalid. 


Part    VI. 

The  States  and  Territories, 


CHAPTER   XXX. 

RELATIONS  OF  FEDERA.L  AND  STATE  GOVERNMENTS. 

172.    References. 

J.  Story,  Constitution,  §§  1813-1825  ;  J.  R.  Tucker,  Constitution,  §§  310- 
319;  T.  M.  Cooley,  Constitutional  Law,  ch.  xi;  H.  C.  Black,  Constitutional 
Law,  ch.  x;  The  Federalist,  l^os.  43,  44;  Luther  v.  Borden  (1848,  7 
Howard,  i;  17  Curtis'  Decisions,  i;  McClain's  Cases,  595;  Thayer's 
Cases,  191);  Texas  v.  White  (1868,  7  Wallace,  700;  Thayer's  Cases, 
302;  McClain's  Cases,  838). 

173.    Relations  of  States  and  Federal  Government  under  the 
Constitution. 

In  discussing  the  historical  development  of  our  constitutional 
system,  it  has  already  been  pointed  out  that  the  state  govern- 
ments came  into  existence  in  practically  their  present  form 
before  the  federal  constitution  was  adopted  (see  above,  §  9)  and 
that  by  reason  of  the  establishment  of  the  federal  government, 
they  were  deprived  of  such  powers  and  only  such  powers  as 
are  expressly  denied  to  them  in  the  federal  constitution  or  are 
inconsistent  with  the  powers  given  to  the  federal  government. 
(See  above,  §  16.)  The  states  remain  sovereign  and  indepen- 
dent with  reference  to  each  other ;  but  the  authority  which  they 
can  exercise  over  their  citizens  is  inferior  to  the  power  which 
the  federal  government  acting  within  the  scope  of  the  federal 

256 


§  173]      States  and  Federal  Government.       257 

constitution  can  exercise  over  the  same  persons  as  citizens  of 
the  United  States.  The  states  do  not  derive  their  powers  from 
the  federal  government  under  the  constitution  but  are  merely 
limited  in  their  powers  by  that  constitution,  and  the  authority  of 
the  federal  government  operates  primarily  and  directly  upon  its 
citizens  and  not  upon  the  states. 

Still  there  are  necessarily  some  relations  between  state  gov- 
ernments and  the  different  departments  of  the  federal  govern- 
ment, and  there  are  some  relations  of  the  states  to  each  other 
which  are  provided  for  or  recognized  by  the  federal  constitution. 
For  instance,  the  legislatures  of  the  states  provide  how  presiden- 
tial electors  are  chosen  (Const.  Art.  II,  §  i,  ^  2)  ;  and  the  times, 
places,  and  manner  of  holding  elections  for  senators  and  repre- 
sentatives in  Congress  are  prescribed  in  each  state  by  the  legis- 
lature thereof  subject  to  revision  by  Congress  (Art.  I,  §  4,  f  i). 
Further,  it  is  provided  that  the  states  may  organize  their  militia 
and  appoint  the  officers  thereof,  subject  to  the  superior  author- 
ity of  the  United  States  when  the  militia  is  called  into  the  serv- 
ice of  the  United  States  (Art.  I,  §  8,  ^  16).  Again,  appeals 
from  the  courts  of  last  resort  in  a  state  to  the  Supreme  Court 
of  the  United  States  are  provided  for  in  cases  where  federal 
questions  are  involved  and  the  decision  is  against  the  right, 
privilege,  or  immunity  claimed  under  the  constitution,  laws,  or 
treaties  of  the  United  States  or  the  authority  thereof.  (See 
above,  §  158.)  And  there  is,  further,  an  express  guarantee  of 
the  preservation  and  protection  of  the  state  governments  by  the 
United  States,  which  will  be  considered  in  the  next  section. 
It  is  evident  from  these  various  provisions,  as  well  as  from  the 
historical  relations  between  the  state  governments  and  the  fed- 
eral government,  that  while  the  federal  government  was  organ- 
ized as  a  sovereign  and  permanent  government,  the  perpetual 
existence  of  the  states  was  at  the  same  time  fully  recognized 
and  provided  for.  "  The  constitution  in  all  its  provisions  looks 
to  an  indestructible  Union,  composed  of  indestructible  states  " 
(Texas  v.   White), 

17 


258  Union  and  States.  [§  174 

174.    Guarantee  of  Republican  Government  in  the  States. 

The  continuing  obligation  of  the  United  States  with  reference 
to  the  existence  of  the  states  is  twofold  ;  The  constitution  pro- 
vides (Art.  IV,  §  4),  for  (i)  a  republican  form  of  government  in 
each  state,  and  (2)  the  protection  of  such  government  against 
being  overthrown  by  invasion  of  a  foreign  power  or  by  domestic 
violence.  It  is  evidently  assumed  in  the  guarantee  that  the  forms 
of  government  existing  in  the  different  states  at  the  time  of  the 
adoption  of  the  federal  constitution  were  republican.  The  char- 
acteristic feature  of  such  a  form  of  government  is  that  those  exer- 
cising authority  do  so  in  a  representative  capacity ;  it  cannot  be 
a  monarchy  on  the  one  hand  nor  a  pure  democracy  on  the 
other.  No  doubt  arepubhcan  form  of  government,  as  described 
in  the  federal  constitution,  involves  the  exercise  of  the  powers 
of  government  by  different  departments,  and  a  selection  of  the 
members  of,  at  least,  the  lower  branch  of  the  legislature  by  pop- 
ular vote,  but  by  popular  vote  it  is  not  necessarily  meant  that 
all  the  adults  or  even  all  the  adult  males  shall  be  entitled  to 
exercise  the  electoral  franchise,  but  only  that  officers  be  in 
some  form  selected  by  a  body  of  electors  substantially  repre- 
senting the  people.  As  will  be  pointed  out  in  the  chapter 
relating  to  citizenship  and  political  privileges  (see  below,  §  200) 
the  right  to  vote  is  to  be  regarded  only  as  a  privilege  conferred 
in  accordance  with  the  public  interest. 

While  the  constitution  provides  that  the  United  States  "  shall " 
guarantee  a  republican  form  of  government  to  the  states,  it  is 
to  be  understood  that  the  exercise  of  this  power  is  discretionary. 
There  has  been,  as  yet,  but  little  discussion  as  to  the  nature 
and  extent  of  this  power,  for  there  has  been  little  occasion 
for  its  exercise.  It  may  be  suggested,  however,  that  republi- 
can government  might  cease  to  exist  in  a  state  (i)  through 
invasion  by  a  foreign  power  and  an  attempt  to  set  up  some 
other  form  of  government  by  its  authority ;  (2)  or  by  a  revo- 
lutionary attempt  of  the  people  themselves  to  overthrow  the 
existing  republican  form  of  government  and  to  substitute  some 
other  form  in  its  place ;  (3)  or  by  an  attempt  to  destroy  repub- 


§  175]  Guaranties  to  States.  259 

lican  government  by  amendment  of  state  constitutions.  In  any 
of  these  instances  the  new  government  would  be  illegal  and  un- 
authorized, and  a  republican  form  of  government  having  ceased 
to  exist  there  would  be  no  state  government  and  Congress  would 
have  occasion  to  provide  for  the  establishment  of  such  a  gov- 
ernment (see  below,  §  181). 

175.    Guarantee  against  Invasion  or  Domestic  Violence. 

The  provision  of  the  federal  constitution  last  above  referred 
to,  so  far  as  it  relates  to  the  protection  of  the  state  governments, 
involves  protection,  not  only  against  invasion,  but  also  against 
domestic  violence.  As  to  invasion,  no  action  of  the  state  in- 
voking federal  protection  is  necessary ;  an  invasion  of  a  state 
is  also  an  invasion  of  the  United  States,  and  would  be  a  proper 
ground  for  the  exercise  of  the  federal  executive  power,  involv- 
ing the  use  of  the  military  and  naval  forces  (see  above,  §  130). 
In  case  of  domestic  violence  against  a  state  government  the 
federal  government  is  authorized  to  act  only  on  application  of 
the  state  legislature,  if  in  session,  or  the  executive  when  the 
legislature  cannot  be  convened.  It  is  provided  by  statute  that 
this  application  be  made  to  the  president  and  that  he  may  call 
out  the  militia  of  other  states  if  a  military  force  is  necessary,  and 
it  is  evidently  implied  that  he  may  make  use  of  any  of  the  mili- 
tary and  naval  forces  of  the  United  States  in  the  exercise  of  his 
discretion  (see  above,  §  131). 

The  express  denial  to  the  states  of  the  power  to  grant  titles 
of  nobility  (Const.  Art.  I,  §  10,  IF  i)  should  properly  be 
regarded  as  a  provision  for  the  preservation  of  a  republican 
form  of  government,  and  the  similar  restriction  on  the  power 
of  the  United  States  (Const.  Art.  I,  §  9,  IT  8)  was  undoubtedly 
intended  to  have  the  same  effect  in  the  preservation  of  a 
republican  form  for  the  federal  government.  These  provisions 
are  self-executing,  and  any  attempted  grant  of  such  titles  by  the 
federal  or  a  state  government  would  be  void  because  un- 
constitutional. 


26o  Union  and  States.  [§  176 

176.    Reconstruction  of  States. 

There  has  been  no  occasion  for  the  active  exercise  by  Con- 
gress of  the  power  to  guarantee  a  repubHcan  form  of  govern- 
ment in  any  state  save  in  those  cases  where  the  existing  state 
governments  were  overthrown  as  the  result  of  the  rebellion  of 
the  Southern  states  in  i86i  and  the  attempt  by  the  people  of 
those  states  to  form  a  new  federal  government  under  the  name 
of  the  Confederate  States  of  America.  This  attempt  was  so  far 
successful  that  in  eleven  Southern  states  the  regularly  constituted 
state  governments  ceased  to  exist  and  revolutionary  governments 
were  substituted.  These  new  state  governments  were  de  facto 
governments  and  were  republican  in  form  ;  but  they  were  not 
the  state  governments  recognized  by  the  federal  constitution, 
for  they  were  not  organized  to  exercise  powers  which  states 
might  have  under  that  constitution,  but  were,  on  the  other  hand, 
organized  to  exercise  power  in  hostility  to  the  government 
therein  provided  for. 

The  people  of  the  Southern  states  in  rebellion  continued  to 
be  citizens  of  the  United  States  and  subject  to  the  constitution 
and  laws  of  the  United  States  and  the  authority  provided  under 
such  constitution  and  laws ;  but  ceasing  for  the  time  being  to 
exercise  the  political  functions  provided  for  by  the  federal  con- 
stitution they  were  without  "  state  "  governments  in  the  sense  of 
the  federal  constitution.  Therefore,  as  far  as  the  federal  govern- 
ment was  concerned,  those  states  at  the  end  of  the  war  were  still 
without  state  governments.  It  thereupon  became  the  duty  of 
the  federal  government,  as  soon  as  peace  and  tranquillity  had 
been  so  far  restored  in  those  states  as  to  make  civil  government 
possible,  to  provide  for  the  establishment  therein  of  regular  state 
governments  ;  and  this  was  done  under  the  provisions  of  the  so- 
called  reconstruction  acts  (1867). 

It  is  unnecessary  now  to  discuss  at  length  the  provisions  of 
these  acts  or  to  consider  the  different  questions  which  arose 
under  them ;  it  is  enough  to  say  that  state  governments  of  a 
republican  form  were  re-established.  During  the  interval  be- 
tween the  overthrow  of  the  existing  but  irregular  state  govern- 


§176]  Reconstruction  of  States.  261 

ments  and  the  recognition  of  new  state  governments  under  the 
reconstruction  acts,  the  states  whose  people  were  in  rebellion 
did  not  cease  to  be  states  in  the  Union,  but  they  were  for  the 
time  being  states  without  any  regular  and  lawful  governments, 
that  is,  without  any  governments  which  the  federal  government 
could  recognize. 


CHAPTER  XXXI. 

ADMISSION   OF   STATES. 

177.    References. 

J.  Story,  Constitution,  §§  1 314-132 1 ;  J.  A.  Jameson,  Constitutional  Con- 
vejitions,  ch.  vii ;  J.  R.  Tucker,  Constitution,  §§  295-301 ;  T.  M.  Cooley, 
Constitutional  Law,  ch.  ix;  H.  C.  Black,  Constitutional  Law  (aded.),  233- 
235;  Boydv.  Thayer  {\^<^2,  143  U.  S.  135;  McClain's  Cases, 423) ;  Texas 
V.  IVhite  (1868,  7  Wallace,  700;  McClain's  Cases,  838;  Thayer's  Cases, 
302);  Sands  v.  Manistee  River  Impro7iement  Co.  (1887,  123  U.  S.  288; 
McClain's  Cases,  842). 

178.    Ratification  by  Original  States. 

As  the  federal  constitution  was  to  go  into  operation  when 
ratified  by  conventions  in  nine  of  the  original  thirteen  states 
(Const.  Art.  VII),  it  evidently  was  contemplated  that  as  the 
federal  government  was  created  by  such  ratification,  any  of  the 
original  states  which  had  not  thus  ratified  at  that  time  should 
later  become  members  of  the  union  by  similar  ratification.  It 
was  not  intended  that  such  states  should  be  excluded  from  the 
union  nor  that  the  union  should  be  forced  upon  them,  but  only 
that  they  should  not  be  members  of  it  until  such  ratification  had 
taken  place.  Congress  was  not  called  upon  to  take  any  steps 
with  reference  to  admission  of  such  states  and  although  ratifica- 
tion was  postponed  in  two  states,  they  soon  became  members 
by  their  voluntary  action. 

179.    Admission  of  New  States  by  Congress. 

But  at  the  time  of  the  formation  of  the  federal  government, 
there  were  large  areas  of  territory  within  its  jurisdiction  derived 
by  cessions  from  the  various  states  and  from  Great  Britain 
under  the  treaty  of  peace  ending  the  war  of  the  Revolution, 
which  were  not  included  within  the  limits  of  any  state,  and 
provision   was  made  in  the  constitution  for   the  admission  of 

262 


§  i8i]  Admission  of  States.  263 

new  states  out  of  such  territory.  This  provision  (Const.  Art 
IV,  §  3,  IF  i)  does  not  specify  the  conditions  under  which 
new  states  shall  be  admitted ;  consequently  Congress  may  im- 
pose such  conditions  as  it  sees  fit.  It  may  require  that  certain 
fundamental  provisions  be  incorporated  into  the  constitution 
of  the  new  state,  that  the  state  accept  such  boundaries  as 
Congress  may  prescribe,  and  in  general  that  any  plan  or  policy 
which  has  the  support  of  Congress  be  acceded  to.  But  when 
a  state  has  once  been  admitted,  it  is  on  a  par,  so  far  as  power 
to  regulate  its  internal  affairs  is  concerned,  with  the  other 
states,  and  it  seems  that  it  may  by  amendment  change  its  con- 
stitution, regardless  of  any  condition  imposed  by  Congress. 
After  admission  a  state  is  limited  as  to  its  powers  only  by  the 
provisions  of  the  constitution  itself  (Sands  v.  Mamsfee  River 
Improvement  Co.). 

180.    Change  of  State  Boundaries. 

After  the  admission  of  a  state  with  specified  boundaries,  such 
boundaries  cannot  be  changed  by  action  of  the  state  alone,  for 
by  the  federal  constitution  (Art.  IV,  §  3,  1"  i)  it  is  provided 
that  "  no  new  state  shall  be  formed  or  erected  within  the  juris- 
diction of  any  other  state,  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states  or  parts  of  states  without  the 
consent  of  the  legislatures  of  the  states  concerned,  as  well  as  of 
the  Congress."  Therefore,  territory  cannot  be  taken  away  from 
a  state  nor  added  to  a  state  without  the  consent  of  both  states 
involved  and  of  Congress  as  well.  In  the  construction  of  this 
language  it  may  well  be  assumed  that  to  attempt  to  change  the 
boundaries  of  a  state  would  in  practical  effect  be  to  attempt 
the  creation  of  a  new  state. 

181.   Reorganization  of  Seceded  States. 

From  what  has  been  said  in  the  last  preceding  chapter  with 
reference  to  the  condition  of  the  states  which  seceded  during 
the  war  of  the  Rebellion,  it  is  evident  that  Congress,  in  pro- 
viding for  the  reorganization  of  governments  in  those  states 
after  the  restoration  of  peace,  did  not  act  under  the  authority 


264  Admission  of  States.  [§  ^8^ 

to  admit  new  states  to  the  union,  but  rather  under  the  authority 
to  guarantee  a  repubUcan  form  of  government.  The  states 
were  not  readmitted,  but  provision  was  made  for  the  re-estab- 
lishment of  governments  therein. 

182.    Steps  for  Admission  of  States. 

Different  methods  for  the  admission  of  new  states  have  been 
pursued  by  Congress  in  different  cases.  Sometimes  the  pro- 
posed state  has  organized  itself  by  the  adoption  of  a  constitu- 
tion and  has  asked  admission  under  such  constitution ;  at  other 
times  conditions  have  been  imposed,  on  compHance  with  which 
by  the  proposed  state  admission  has  been  granted ;  and  again, 
Congress  has  sometimes  first  provided  for  the  formation  of  a  con- 
stitution under  the  authority  of  an  enabling  act,  and  then  for  the 
admission  of  the  proposed  state  when  the  constitution  should  be 
adopted  by  the  people  as  prescribed  by  the  act.  It  has  not 
always  been  required  that  the  constitution  under  which  the 
state  is  admitted  shall  have  been  submitted  for  approval  by  the 
people  of  the  proposed  state,  but  that  has  been  required  in 
most  cases  and  in  all  the  recent  cases  of  admission. 

183.    Effect  of  Admission  of  States. 

Congress  has  authority  to  organize  territories  and  provide  for 
local  governments  therein,  analogous  in  some  respects  to  the 
governments  of  the  states.  Frequently,  but  not  uniformly, 
territories  thus  created  have  been  subsequently  admitted  as 
states  with  the  same  boundaries,  but  even  when  so  admitted  the 
state  government  has  gone  into  operation  under  the  constitution 
adopted  at  the  time  of  its  admission  as  a  new  government.  It 
is  proper,  however,  to  provide  and  is  often  provided  by  the  statute 
for  admission  that  the  laws  of  the  territory  shall  remain  in  force 
until  they  are  superceded  by  the  adoption  of  state  laws  under 
the  authority  of  the  constitution  of  the  new  state. 


CHAPTER   XXXII. 
TERRITORIAL  GOVERNMENTS. 
184.    References. 

J.  Story,  Constitution,  §§  1 322-1330;  J.  N.  Pomeroy,  Constitutional  Law, 
§§  483-499;  T.  M.  Cooley,  Constitutional  Law,  ch.  viii;  H.  C.  Black, 
Constitutional  Law  (2d  ed.),  pp.  228-232  ;  American  Lnsurance  Co.  v.  Canter 
(1828,  I  Peters,  511;  7  Curtis'  Decisions,  685;  McClain's  Cases,  827; 
Thayer's  Cases,  350  and  note,  Marshall's  Decisions,  Dillon's  ed.,  586)  ; 
Clinton  v.  Englebrecht  (1871,  13  Wallace,  434) ;  Thompson  v.  Utah  (1898, 
170  U.  S.  343  ;  McClain's  Cases,  831) ;  The  Insular  Cases :  viz.  De  Lima 
V.  Bidwell  (1901,  182  U.  S.  i);  Dotvnes  \.  Bidwell  (1901,  182  U.S. 
244;  McClain's  Cases,  2d  ed.,  1119);  L)ooley  v.  United  States  (1901,  182 
U.  S- 222  ;  McClain's  Cases,  2d  ed.,  1226)  ;  Hawaii  v.  Mankichi  (1903, 
190  U.  S.  197  ;  McClain's  Cases,  2d  ed.,  1244)  ;  Gonzales  v.  Williams 
(1904,  192  U.  S.  i);  Dorr  v.  United  States  (1904,  195  U.  S.  138; 
McClain's  Cases,  2d  ed.,  1252.) 

185.    Territorial  Power  of  Congress. 

The  territories  of  the  United  States  not  included  within  the 
limits  of  any  state  may  be  governed  directly  by  Congress  under 
authority  "  to  make  all  needful  rules  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  JJnited  States  " 
(Art.  IV,  §  3,  1  3).  In  the  exercise  of  that  power  Congress 
may  provide  as  it  sees  fit  for  a  greater  or  less  degree  of  local 
self-government  in  any  portion  of  such  territory.  It  may  pro- 
vide for  the  organization  of  a  territorial  government  in  a  speci- 
fied portion  of  territory  set  apart  under  a  distinct  name  given 
to  it,  with  executive,  legislative,  and  judicial  departments,  may 
grant  the  elective  franchise  to  persons  within  such  territory 
having  certain  qualifications,  and  may  authorize  the  election 
by  them  of  members  of  the  legislative  body.  The  governor 
and  the  judges  are  appointed  by  the  president.  But  such 
judges  are  not  technically  "judges  of  the  courts  of  the  United 
States,"  within  the  description  of  the  federal  constitution,  and 

265 


266  Territorial  Governments.  [§  i86 

its  provisions  with  reference  to  tenure  of  office  of  the  judges  of 
the  judicial  department  of  the  federal  government  are  not  ap- 
plicable to  the  territorial  judges  thus  provided  for,  and  the 
courts  thus  created  are  not  courts  of  the  United  States,  but 
courts  of  the  territories,  having  such  authority  as  Congress  may 
prescribe  (^American  Insurance  Co,  v.  Canter  and  Clinton  v. 
Englebrecht). 

186.  The  Constitution  in  the  Territories. 

Serious  questions  have  recently  arisen  as  to  whether  all  the 
provisions  of  the  federal  constitution  are  applicable  in  territory 
which  is  under  the  jurisdiction  of  the  United  States  but  outside 
the  limits  of  the  states.  Some  provisions  of  the  federal  consti- 
tution are  by  their  terras  applicable  only  to  the  states,  and  it 
may  be  assumed  that  the  provisions  of  the  constitution,  as  a 
whole,  were  primarily  designed  for  a  federal  government  exer- 
cising its  powers  with  reference  to  territory  and  persons  in- 
cluded within  state  limits.  On  the  other  hand,  it  is  evident 
that  when  the  federal  constitution  was  framed  and  adopted  it 
was  contemplated  that  there  should  be  territory  within  the 
jurisdiction  of  the  United  States  which  should  temporarily,  at 
least,  not  be  within  the  limits  of  any  state ;  and  that  there 
should  be  persons,  subjects  of  the  United  States,  who  are  not 
citizens  of  any  states.  Prior  to  the  adoption  of  the  federal 
constitution,  the  so-called  Northwestern  Territory  had  been 
organized  by  the  Congress  existing  under  the  Articles  of  Con- 
federation, including  the  territory  now  embraced  in  the  states 
of  Ohio,  Indiana,  Illinois,  Michigan,  and  Wisconsin  ;  and  this 
territorial  government  was  recognized  as  continuing  to  exist 
after  the  adoption  of  the  federal  constitution.  It  is  not  to  be 
doubted  that  persons  residing  within  the  limits  of  this  territory 
and  subject  to  the  jurisdiction  of  the  United  States  were  con- 
sidered citizens  of  the  United  States. 

As  a  matter  of  fact,  the  constitution  of  the  United  States  has 
been  expressly  extended  by  acts  of  Congress  to  all  the  territory 
of  the  United  States  within  the  limits  of  the  North  American 
continent,  and  citizenship  has  been  conferred  either  by  treaties 


§  1 86]     Constitution  in  the  Territories.         267 

of  annexation  or  by  action  of  Congress  upon  all  persons  be- 
coming subject  to  the  United  States  within  those  limits ;  so  that 
there  is  no  question  as  to  the  constitution  having  full  force  and 
effect,  either  by  its  own  operation  or  by  express  action  of  the 
federal  government,  within  such  territory.  But  express  provi- 
sion has  not  thus  been  made  for  the  extension  of  the  constitu- 
tion over  Porto  Rico  and  the  Philippine  Islands,  recently 
acquired  by  treaty  with  Spain  ;  nor  has  citizenship  been  ex- 
pressly conferred  upon  the  inhabitants  of  such  territory,  and 
it  is  still,  perhaps,  not  fully  decided  whether  the  general  limita- 
tions found  in  the  federal  constitution  on  the  powers  of  the 
federal  government  and  the  rights  of  citizenship  under  the  fed- 
eral constitution  have  been  extended  to  these  islands  and  their 
inhabitants  in  consequence  of  acquisition  by  the  United  States. 
It  has,  indeed,  been  settled  that  the  islands  are  not  foreign  terri- 
tory (see  Insular  Cases),  and  that  the  inhabitants,  who  have 
become  permanently  subject  to  the  authority  of  the  United 
States, are  not  ahens  {^Gonzales  v.  Williams).  Something  more 
will  be  said  in  the  chapter  relating  to  citizenship  (below,  ch. 
xxxiv)  as  to  the  condition  of  the  inhabitants. 

Whatever  may  be  the  conclusion  as  to  citizenship  in  the 
insular  possessions,  it  is  conceded  that  Congress  has  the  power 
under  the  constitution  to  make  such  provisions  as  it  sees  fit, 
with  reference  to  the  government  of  the  people  within  such 
insular  possessions  and  to  organize  such  local  governments  as 
it  deems  expedient ;  and  it  may  confer  upon  the  inhabitants 
such  political  rights  as  public  policy  may  justify  or  require. 
The  extent  to  which  the  inhabitants  of  this  newly  acquired 
territory  shall  enjoy  the  privileges  of  self-government  cannot  be 
determined  otherwise  than  by  action  of  Congress  {Dorr  v. 
United  States) . 


CHAPTER   XXXIII. 

RELATION   OF   THE   STATES    TO   EACH   OTHER. 

187.    References. 

J.  Story,  Constitution,  §§  1 302-1 31 3;  J.  R.  Tucker,  Constitution,  %^  Tpj- 
309;  T.  M.  Cooley,  Constitutional  Liiiiitations,  *397  ;  T.  M.  Cooley,  Con- 
stitutional La%v,  ch.  x;  H.  C.  Black,  Constitutional  Law,  ch.  ix  ;  Kentucky 
V.  Dennison  (i860,  24  Howard,  66);  Ex  parte  7^ eo-cre I  [iSS^,  115  U.  S. 
642;  McClain's  Cases,  867)  ;  Lascelles  v.  Georgia  {1893,  M^  U.  S.  537; 
McClain's  Cases,  872) ;  McCready  v.  Virginia  ( 1876,  94  U.  S.  391) ;  Ward 
V.  Maryland  (1870,  12  Wallace,  418;  Thayer's  Cases,  1410)  ;  Paul  v. 
Virginia  (1868,  8  Wallace,  168  ;  McClain's  Cases,  855  ;  Thayer's  Cases, 
1928) ;  Blake  v.  McClung  (1898,  172  U.  S.  238;  McClain's  Cases,  859). 

188.  States  Independent;  Inter-State  Comity. 

As  a  general  proposition  it  may  be  said  that  the  states  are 
independent  of  each  other,  and  so  far  as  they  can  have  any  rela- 
tions to  each  other  or  to  the  citizens  of  another  state  those 
relations  are  determined  by  the  provisions  of  the  federal  con- 
stitution. The  laws  of  each  state  have  force  only  within  its 
limits.  The  extent  to  which  rights  and  obligations  arising 
within  one  state  are  to  be  recognized  in  another  is  determined 
in  general  by  the  same  rules  of  comity  which  apply  between 
foreign  governments ;  that  is,  the  states  are  said  to  be  foreign  to 
each  other  in  deciding  the  effect  to  be  given  in  one  state  to  the 
laws  of  another. 

Nevertheless,  just  as  between  governments  entirely  foreign  to 
each  other,  so  as  between  states,  some  principles  obtain  to  which 
the  term  "  private  international  law  "  or  *'  conflict  of  laws  "  is 
usually  applied.  Thus  contracts  made  in  one  state  and  valid 
where  made  are  usually  recognized  as  valid  when  it  is  sought 
to  enforce  or  call  them  in  question  in  another  state.  But  the 
general  subject  of  conflict  of  laws  as  aff'ecting  the  validity  of 

268      • 


§189]  Extradition  of  Criminals.  269 

contracts,  the  liability  for  injury  done  to  persons  or  property, 
the  recognition  of  marriages  and  divorces  in  another  state  and 
like  matters,  are  beyond  the  scope  of  this  treatise. 

The  fact  that  the  laws  of  one  state  cannot  be  enforced  in 
another  and  that  the  authority  of  one  state  cannot  be  in  any 
way  exercised  within  the  limits  of  another  is  to  be  especially 
borne  in  mind  with  reference  to  crimes  against  its  laws.  A 
crime  is  to  be  punished  if  committed  against  the  laws  of  a  state 
only  within  the  limits  of  that  state,  and  the  courts  of  another 
state  cannot  take  cognizance  of  such  a  crime  for  purposes  of 
punishment;  nor  has  any  state  the  authority  to  send  its  offi- 
cers into  another  state  for  the  purpose  of  arresting  and  bringing 
back  a  fugitive  from  justice,  save  as  provided  by  the  federal 
constitution. 

189.    Extradition  of  Criminals. 

The  federal  constitution  does  provide,  however,  that  "  A  per- 
son charged  in  any  state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice  and  be  found  in  another  state,  shall 
on  demand  of  the  executive  authority  of  the  state  from  which 
he  fled  be  delivered  up  to  be  removed  to  the  state  having  juris- 
diction of  the  crime"  (Art.  IV,  §  2,  If  2).  The  purpose  of 
such  provision  is  that  the  fugitive  may  be  duly  tried  and  pun- 
ished. Between  foreign  governments  the  return  of  fugitives 
from  justice  fleeing  from  one  country  to  another  may  be  pro- 
vided for  by  treaty.  But  as  the  states  cannot  make  treaties 
with  each  other,  it  was  proper  that,  as  between  states,  the 
matter  be  regulated  by  the  constitution.  It  is  to  be  noticed 
that  while  it  is  made  the  duty  of  the  executive  of  any  state 
to  deliver  up  a  fugitive  from  justice  upon  demand  of  another 
state,  there  is  no  method  provided  in  the  constitution  by 
which  such  duty  may  be  enforced;  and  though  Congress  has 
by  statute  regulated  the  matter  (1793)  it  has  never  taken  up 
the  question  of  a  refusal  by  a  state  executive  to  follow  out 
that  procedure. 

In  each  state  there  are  statutory  provisions  with  reference  to 
demanding  the  return  of  fugitives  from  justice  who  have  escaped 


270  Interstate  Relations.  [§  189 

into  another  state,  and  for  extraditing  fugitives  found  in  the 
state  whose  return  is  demanded  by  the  executive  authority  of 
another  state.  It  is  regarded  as  proper,  however,  for  the  execu- 
tive upon  whom  the  demand  is  made  for  the  extradition  of  a 
fugitive  from  justice  to  inquire  into  the  question  whether  such 
person  is  in  fact  a  fugitive,  that  is,  whether  he  has  come  into 
the  state  from  another  state  where  he  is  charged  with  having 
committed  a  crime,  and  until  it  appears  that  he  is  such  fugi- 
tive, and  that  he  has  been  in  a  proper  proceeding  charged 
with  a  crime  in  the  state  demanding  his  return,  he  will  not 
be  delivered  up. 

The  crime  for  which  a  fugitive  should  be  returned  on  proper 
demand  may  be  any  crime  under  the  laws  of  the  state  demanding 
his  return,  whether  it  be  a  crime  under  the  laws  of  the  state  from 
which  his  return  is  demanded  or  not  (^Kentucky  v.  De/t?iison)^ 
and  the  state  to  which  he  is  returned  may  put  him  on  trial  for 
any  offence  which  he  has  committed  in  that  state,  though  it  be 
a  different  crime  from  that  for  which  he  has  been  brought  back 
{Lascelles  v.  Georgia).  Although  the  constitutional  provision 
does  not  refer  to  the  territories.  Congress  has  by  statute  covered 
such  cases  of  fugitives  {Ex  parte  Reggel). 

The  succeeding  paragraph  of  the  federal  constitution  relating 
to  persons  held  to  service  or  labor  in  one  state  under  the  laws 
thereof  who  have  escaped  into  another,  and  requiring  that  such 
persons  shall  not  be  discliarged  from  such  service  or  labor  by 
any  laws  or  regulations  of  another  state,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor  may  be 
due,  was  evidently  intended  primarily  to  apply  to  slaves  escap- 
ing from  one  state  to  another;  and  fugitive  slave  laws  were 
passed  by  Congress  in  order  to  make  effectual  this  provision. 
But  since  the  abolition  of  slavery  throughout  the  United  States 
by  the  adoption  of  the  Thirteenth  Amendment,  this  provision 
has  ceased  to  have  any  practical  value,  though  it  doubtless 
applies  to  apprentices,  and  perhaps  might  apply  to  persons 
convicted  of  crime  in  one  state  and  sentenced  to  labor  as  a 
punishment,  but  who  have  subsequently  escaped  to  another 
state. 


§  190]  Privileges  and  Immunities.  271 

190.    Privileges  and  Immuuities  of  State  Citizenship. 

Even  in  the  absence  of  express  treaty  comity  between  coun- 
tries foreign  to  each  other  usually  involves  during  time  of  peace 
the  privilege  of  the  subjects  of  one  country  to  come  into  the 
territory  of  the  other,  to  conduct  business  and  acquire  property, 
and  to  have  the  protection  of  the  judicial  tribunals  to  substan- 
tially the  same  extent  as  enjoyed  by  subjects  of  the  latter; 
especially  is  this  true  where  the  subjects  of  one  country  become 
permanent  residents  of  the  other,  although  they  may  not  ac- 
quire citizenship.  The  only  substantial  exception  to  this  rule 
of  comity  is  as  to  the  ownership  of  real  estate.  By  the  law  of 
England,  as  it  existed  when  the  colonies  became  independent, 
an  alien  could  not,  in  general,  acquire  tide  to  real  estate  by 
inheritance.  In  many  of  the  states  the  disability  of  aliens  to 
acquire  and  hold  real  estate  has  been  removed,  while  in  others 
it  has  been  preserved. 

In  order  that  such  questions  as  this  might  not  be  left  uncer- 
tain as  between  the  states,  and  dependent  on  comity  merely, 
it  was  provided  in  the  federal  constitution  that  "  The  citizens  of 
each  state  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  states"  (Const.  Art.  IV,  §  2,  IT  i).  The 
manifest  result  is  that  all  the  privileges  and  immunities  enjoyed 
by  the  citizens  of  a  state  by  virtue  of  the  fact  of  citizenship 
may  also  be  enjoyed  by  citizens  of  any  other  state ;  and  this 
involves  a  prohibition  of  any  discrimination  in  the  laws  of  a 
state  against  citizens  of  other  states  as  compared  with  the  state's 
own  citizens.  Thus  a  state  statute  is  unconstitutional  which 
restricts  the  pursuit  of  some  particular  business  to  citizens  of  the 
state  and  prohibits  citizens  of  other  states  from  engaging  in 
such  business. 

But  political  privileges,  such  as  the  right  to  vote  and  hold 
office  and  the  privilege  of  serving  on  juries  and  the  like,  can  be 
limited  to  citizens  of  the  state,  and  a  person  going  from  one  state 
to  another  does  not  carry  into  the  latter  state  the  privileges  which 
he  enjoyed  in  the  former,  for  these  are  matters  to  be  regulated 
by  each  state  for   itself.     The  privilege  of  practising  law  in  a 


272  Interstate  Relations.  [§  190 

state  may  be  limited,  undoubtedly,  to  persons  who  are  citizens 
of  the  state.  There  are  some  privileges  also,  such  as  the  right 
to  fish  in  the  public  waters  and  to  hunt  game  within  the  state 
limits  {McCready  v.  Virginia),  which  are  regarded  as  incident 
to  the  enjoyment  by  the  citizens  or  inhabitants  of  the  state  of 
the  public  property  belonging  to  the  state  as  representing  its 
people,  and  the  state  may  exclude  from  the  enjoyment  of  these 
privileges  persons  who  are  not  inhabitants  of  the  state.  The 
following  are  privileges  and  immunities  of  citizenship  which 
cannot  be  denied  by  a  state  to  citizens  of  other  states :  pro- 
tection by  the  government ;  enjoyment  of  life  and  liberty  ;  the 
right  to  acquire  and  possess  property,  subject,  of  course,  to  the 
general  police  power,  which,  however,  must  be  exercised  with- 
out discrimination  as  between  citizens  of  the  state  and  citizens 
of  other  states  ;  the  right  of  a  citizen  of  one  state  to  pass  through 
or  reside  in  any  other  state ;  the  right  to  institute  and  maintain 
actions  in  the  courts  of  the  state  {Ward  v.  Marylana). 

The  equality  of  privileges  thus  guaranteed  is  equality  with 
ciUzens,  that  is,  with  natural  persons  who  are  entitled  to  citizen- 
ship in  the  state  in  which  they  have  their  permanent  residence. 
Corporations  are  artificial  persons,  and  while  they  are  regarded 
as  having  in  many  respects  the  same  rights  as  natural  persons 
and  protected  by  the  guaranties  of  rights  which  are  accorded 
to  natural  persons,  they  are  not  and  cannot  be  citizens  in  the 
full  sense  and  meaning  of  the  term.  Therefore,  a  state  is  not 
bound  by  the  provisions  of  the  federal  constitution  to  accord 
to  corporations  created  in  other  states  all  the  privileges  granted 
to  state  corporations,  much  less  all  the  privileges  and  immunities 
possessed  by  natural  citizens.  While  it  is  usual  for  a  state  to 
allow  corporations  created  in  other  states  to  carry  on  business 
in  that  state,  it  is  not  a  violation  of  the  provision  of  the  federal 
constitution  to  impose  restrictions  on  such  foreign  corporations 
which  are  not  imposed  on  corporations  created  in  the  state,  or 
to  discriminate  as  against  foreign  corporations  in  favor  of 
domestic  corporations  ;  and  it  is  regarded  as  permissible  to  a 
state  to  exclude  foreign  corporations  altogether  or  to  prescribe 
special  conditions  on  which  all   foreign  corporations  or  foreign 


§  191]  Credit  to  Records.  273 

corporations  doing  a  particular  class  of  business  shall  be  allowed 
to  engage  in  business  within  the  state  {Paul  v.  Virginia  and 
Blake  V.  McClung).  It  does  not  follow  that  a  foreign  cor- 
poration can  be  deprived  of  property  lawfully  acquired  within 
the  state  without  due  process  of  law,  or  that  it  can  be  denied 
within  the  state  the  equal  protection  of  the  laws  as  to  property 
which  it  has  lawfully  acquired. 

191.    Faith  and  Credit  to  Acts,  Records,  and  Judgments 
of  the  States. 

By  comity  between  foreign  governments  judgments  of  courts 
in  one  country  are  usually  treated  as  vahd  in  another  country ; 
that  is  to  say,  if  in  an  action  brought  in  the  courts  of  one  coun- 
try having  jurisdiction  of  the  case,  a  judgment  is  rendered 
determining  the  rights  of  the  parties  to  the  action,  this  judgment 
is  regarded  as  conclusive  between  the  same  parties  in  an  action 
involving  the  same  issues  brought  in  another  country,  and  can 
only  be  impeached  or  disregarded  on  proof  that  the  judgment 
was  not  valid  where  rendered.  This  rule  of  comity  existing 
between  countries  wholly  foreign  to  each  other  is  made  a  con- 
stitutional rule  as  between  the  states  by  provision  of  the  federal 
constitution  that  "  Full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  state.  And  the  Congress  may  by  general  laws  pre- 
scribe the  manner  in  which  such  acts,  records,  and  proceedings 
shall  be  proved  and  the  effect  thereof"  (Const.  Art.  IV,  §  i, 
IF  i).  This  provision  extends  not  only  to  judgments  rendered 
and  the  records  thereof,  but  also  to  the  public  statutes  of  a 
state,  so  that  if  it  becomes  necessary  to  determine  in  the  courts 
of  one  state  what  the  public  statutes  of  another  state  are,  the 
fact  may  be  shown  by  the  legislative  records  of  the  state  whose 
laws  are  in  question. 

Congress  has  made  provision  (first  in  1790)  for  the  method 
of  proving  in  any  state  the  public  acts,  records,  and  judicial  pro- 
ceedings of  any  other  state.  The  public  laws  of  any  state  are 
presumed  to  be  known  to  persons  within  that  state  and  the 
courts  of  the  state  will  take  judicial  notice  of  them  without 

18 


274  Interstate  Relations.  [§191 

proof;  but  the  laws  of  another  state  are  not  thus  presumed  to 
be  matter  of  general  knowledge  and  the  courts  will  not  take 
judicial  notice  of  them,  but  they  must  be  proven  like  other  facts 
when  they  are  in  any  way  called  in  question.  However,  the 
courts  of  a  state  must  take  judicial  notice  of  the  constitution, 
laws,  and  treaties  of  the  United  States ;  and  likewise  the  courts 
of  the  United  States  held  in  any  state  must  take  judicial  notice 
of  the  constitution  and  laws  of  that  state.  The  laws  of  another 
state  or  country  are  to  be  proved  as  matters  of  fact ;  a  court 
cannot  in  general  take  judicial  notice  of  them. 


Part    VII. 

Relations  of  the  Individual  to  the 
Government. 


CHAPTER   XXXIV. 
CITIZENSHIP. 

192.    References. 

J.  Story,  Constitution  (Cooley's  ed.),  Suppl.,  §§  1930-1937;  J.  R. 
Tucker,  Constitution,  §§  174,  389;  J.  I.  C.  Hare,  Constitutional  Law,  515- 
522 ;  J.  N.  Pomeroy,  Constitutional  Law,  §  102 ;  J.  A.  Jameson,  Constitu- 
tional Conventio7ts,  §§  358-361 ;  J.  W.  Burgess,  Political  Science,  1, 218-232  ; 
T.  M.  Cooley,  Constitutional  Law,  ch.  xiv,  §  i ;  H.  C.  Black,  Constitutional 
Law,  §§  224-231  ;  F.  Van  Dyne,  Citizejiship  of  United  States;  James  Wil- 
son, Lectures  on  Jurisprudence  (Andrews'  ed.),  II,  ch.  xi ;  I.  B.  Richman, 
Citizenship  of  United  States  {Pol.  Sci.  Quart.,  V,  104) ;  A.  P.  Morse,  Civil 
and  Political  Status  of  Lnhabitants  of  Ceded  Territories  {Harv.  Law  Rev., 
xiv,  262) ;  J.  B.  Thayer,  Cases  on  Constitutional  Law,  notes,  pp.  459  and 
464 ;  United  States  v.  Wong  Kim  Ark  (1898,  169  U.  S.  649  ;  McClain's 
Cases,  964);  Elk  v.  Wilkins  (1884,  112  U.  S.  94);  Downes  v.  Bidwell 
(1901,  182  U.  S.  244;  McClain's  Cases,  2d  ed.,  1119);  Gonzales  v. 
Williams  (1904,  192  U.  S.  i)  ;  Boyd  v.  Thayer  {1892,  143  U.  S.  135; 
McClain's  Cases,  423);  Ward  \.  Maryland  (1870,  12  Wallace,  418; 
Thayer's  Cases,  1410)  ;  Slaughter- House  Cases  (1872,  16  Wallace,  36; 
Thayer's  Cases,  516;  McClain's  Cases,  18);  Civil  Rights  Cases  (1883, 
109  U.  S.  3  ;  McClain's  Cases,  37  ;  Thayer's  Cases,  554). 

193.    Citizenship  in  the  States. 

Prior  to  the  adoption  of  the  Fourteenth  Amendment  to  the 
federal  constitution  there  was  no  uniform  rule  as  to  state  citizen- 
ship.    (See  above,  §  100.)     The  sole  power  of  providing  by 

275 


276  Citizenship.  [§  193 

uniform  law  for  the  naturalization  of  aliens  was  in  Congress, 
and  perhaps  it  was  to  be  assumed  that  the  rule  recognized  in 
England  that  birth  within  the  jurisdiction  of  a  state  was  sufficient 
to  constitute  citizenship  was  the  only  rule  on  the  subject.  But 
since  the  adoption  of  the  Fourteenth  Amendment,  which  spe- 
cifically provides  that  "  All  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof  are  citizens 
of  the  United  States  and  of  the  state  wherein  they  reside,"  it  is 
assumed  that  citizenship  in  a  state  is  acquired  by  permanent 
residence  therein  of  any  person  who  by  birth  or  naturalization 
has  become  a  citizen  of  the  United  States ;  and  state  citizenship 
is  therefore  determined  by  this  test. 

It  is  to  be  noticed  that  citizenship  in  a  state  is  not  deter- 
mined by  any  prescribed  term  of  residence.  A  state  may  require 
residence  for  a  specified  period  as  a  condition  for  enjoyment 
of  the  elective  franchise  ;  but  the  moment  that  residence  in  a 
state  by  one  who  is  a  citizen  of  the  United  States  commences, 
or  the  moment  one  who  resides  in  a  state  acquires  citizenship 
in  the  United  States,  that  moment  such  person  becomes  a 
citizen  of  the  state.  By  residence  is  meant,  not  merely  a  tem- 
porary abiding  within  the  state,  but  residence  in  a  legal  sense, 
that  is,  a  permanent  residence.  The  term  in  this  connection  is 
synonymous  with  domicil  and  involves  residence  in  fact,  with 
intent  that  it  shall  continue  until  subsequent  removal  with  the 
intent  of  abandoning  such  residence  and  acquiring  another. 

While  it  is  usual  to  confer  political  privileges  only  upon  citi- 
zens, the  states  may,  if  they  see  fit,  confer  at  least  some  of  these 
privileges  upon  persons  who  are  not  citizens.  In  several  of  the 
Western  states  persons  who  have  declared  their  intention  to 
become  citizens  of  the  United  States,  although  the  required 
period  of  residence  entitling  them  to  naturalization  has  not  been 
completed,  have  been  allowed  to  vote  and  hold  office ;  but  such 
persons  do  not  thereby  become  citizens  of  the  state,  not  being 
citizens  of  the  United  States.  It  would  thus  appear  that  not 
only  may  persons  who  are  citizens  of  a  state  be  denied  political 
privileges,  because  their  term  of  residence  in  the  state  has  not 
been  of  sufficient  duration,  but  on  the  other  hand  persons  may 


§  194]  By  Birth.  277 

be  given  political  privileges  who  have  not  yet  acquired  citizen- 
ship. It  is  apparent  that  there  is  no  necessary  connection 
between  the  two,  and  that  citizenship  is  to  be  determined  by 
the  federal  constitution  and  laws,  while  the  enjoyment  of  political 
privileges  is  dependent  upon  the  constitution  and  laws  of  the 
state.  (See  below,  §  198.)  Of  course,  in  the  territory  within 
the  jurisdiction  of  the  United  States  and  not  within  the  juris- 
diction of  any  state,  political  privileges,  if  any,  are  enjoyed  by 
virtue  of  the  laws  of  the  United  States. 

The  distinction  between  the  right  of  citizenship  and  the 
enjoyment  of  political  privileges  is  made  clear  by  noticing  that 
political  privileges  are  conferred  only  on  adults  and  in  most  of 
the  states  only  on  adult  males ;  while  all  persons,  men,  women, 
and  children,  are  citizens  if  they  come  within  the  description  of 
citizenship  found  in  the  constitution  and  laws. 

194.   Citizenship  in  the  United  States  by  Birth. 

One  becomes  a  citizen  of  the  United  States  either  by  birth 
or  naturalization.  By  the  simple  language  of  the  Fourteenth 
Amendment  "  All  persons  born  in  the  United  States  and  sub- 
ject to  the  jurisdiction  thereof  are  citizens  " ;  but  interpreta- 
tion has  been  necessary  in  applying  this  language  to  particular 
classes  of  cases.  For  instance,  an  Indian  whose  parents  at  the 
time  of  his  birth  were  members  and  subject  to  the  jurisdiction 
of  his  tribe,  although  he  may  have  been  born  within  the  terri- 
torial limits  of  the  United  States,  is  not  a  citizen  by  birth  and 
can  become  a  citizen  only  by  naturalization  (E/k  v.  Wilkins)  ; 
and  this  can  be  effected  only  under  special  laws  relating  to  In- 
dians, not  under  the  general  naturalization  laws.  If,  however, 
at  the  time  of  his  birth  his  parents,  although  not  citizens  of  the 
United  States,  are  not  members  and  subject  to  the  jurisdiction 
of  a  tribe,  then  he  is  no  doubt  a  citizen  by  birth,  for  citizenship 
of  parents  is  not  essential  if  such  parents  are  subject  to  the 
jurisdiction  of  the  United  States  at  the  time  when  the  person  in 
question  is  born  within  the  territory  of  the  United  States.  Thus 
it  has  been  held  in  United  States  v.  Wofig  Kim  Ark,  that 
although  the  subjects  of  China  cannot  become  citizens,  never- 


278  Citizenship.  [§  194 

theless  the  children  of  Chinese  parents  having  a  permanent 
residence  within  the  United  States  are  citizens  by  birth. 

A  proof  that  the  birth  which  confers  citizenship  must  be  not 
only  within  the  actual  territorial  limits  of  the  United  States,  but 
also  within  the  jurisdiction  of  the  United  States,  is  the  recog- 
nized rule  applied  to  children  born  within  the  territorial  limits 
to  alien  parents  who  are  only  temporarily  within  such  limits. 
In  such  cases  a  right  of  choice  is  recognized ;  if  the  child  re- 
mains within  the  limits  of  the  United  States  until  he  reaches 
years  of  discretion  he  is  entitled  to  claim  citizenship  by  birth  ; 
while  on  the  other  hand  if  before  years  of  discretion  are  at- 
tained he  is  taken  by  his  parents  to  the  country  of  their  alle- 
giance and  elects  to  remain  there  he  is  an  alien  to  the  United 
States  notwithstanding  his  birth. 

As  to  all  these  matters  there  is  some  uncertainty,  but  by 
principles  of  international  law  which  are  recognized  by  the 
United  States,  as  well  as  in  all  other  civilized  countries,  chil- 
dren born  to  ambassadors  and  foreign  ministers  temporarily 
residing  in  one  country  as  the  representative  of  a  foreign  gov- 
ernment are  regarded  as  having  been  born  within  the  jurisdic- 
tion of  the  government  which  the  ambassador  or  minister 
represents  and  to  which  he  owes  allegiance,  and  not  within  the 
jurisdiction  of  the  country  in  which  he  is  thus  temporarily 
residing.  This  principle  is  applied  to  children  born  abroad  to 
persons  who  are  citizens  of  the  United  States  in  the  foreign 
service,  and  such  children  though  not  born  within  the  actual 
territorial  limits  of  the  United  States  are  by  fiction  said  to  have 
been  born  within  the  jurisdiction  of  the  United  States  and  to 
be  citizens  by  birth,  unless  perhaps  they  have  elected  to  remain 
permanently  abroad  and  thus  disavow  the  assumption  of  United 
States  citizenship.  In  1855  Congress  enacted  statutory  provi- 
sions still  in  force  by  which  it  is  declared  that  children  born 
outside  the  limits  of  the  United  States  whose  fathers  are  citizens 
thereof  are  citizens  by  birth.  An  analogous  rule  is  applicable, 
no  doubt,  to  children  born  on  the  high  seas  on  vessels  sailing 
under  the  flag  of  the  United  States,  and  such  persons  may  claim 
to  be  citizens  of  the  United  States  by  birth  although  the  actual 


§  195]  By  Naturalization.  279 

place  of  birth  was  not  within  the  territorial  hmits  of  the  United 
States. 

The  rule,  in  short,  seems  to  be  this,  that  persons  born  within 
the  territorial  limits  of  the  United  States  are  citizens  by  birth 
without  regard  to  the  citizenship  of  their  parents  at  the  time  of 
birth,  with  the  recognized  exception,  that  if  the  parents  are 
not  subject  to  the  jurisdiction  of  the  United  States  by  reason  of 
being  members  of  an  Indian  tribe,  or  foreign  ambassadors  or 
ministers,  or  foreign  subjects  on  board  vessels  of  another  na- 
tionality, or  perhaps  foreign  subjects  temporarily  sojourning  in 
the  United  States,  then  the  place  of  birth  is  not  controlling ; 
while  on  the  other  hand  persons  born  outside  of  the  territorial 
limits  of  the  United  States  whose  parents  are  citizens  of  the 
United  States  in  its  foreign  service,  or  are  upon  United  States 
vessels,  or  are  subjects  of  the  United  States  temporarily  sojourn- 
ing abroad,  may  claim  United  States  citizenship  on  reaching  the 
age  of  discretion  if  they  so  desire. 

The  status  of  persons  permanently  residing  within  the  Philip- 
pine Islands  and  the  Island  of  Porto  Rico  at  the  time  of 
acquisition  of  such  islands  from  Spain  seems  to  be  still  in 
doubt ;  for  no  provision  was  made  in  the  treaty  with  Spain, 
nor  has  any  provision  been  made  by  act  of  Congress,  respecting 
the  acquisition  of  citizenship  by  such  persons  ;  but  it  will  prob- 
ably be  decided  that  children  born  within  such  insular  posses- 
sions of  the  United  States  subsequent  to  the  date  of  their 
acquisition,  their  parents  at  time  of  birth  being  permanent  resi- 
dents of  such  territory,  are  citizens  by  birth  irrespective  of  any 
question  as  to  the  citizenship  of  such  parents ;  for,  as  already 
indicated,  citizenship  of  the  parents  is  not  the  test  in  determining 
citizenship  of  the  children. 

195.  Citizenship  in  the  United  States  by  Naturalization. 

It  lies  within  the  power  of  the  United  States  government, 
either  by  treaty  with  a  foreign  power  or  by  act  of  Congress,  to 
confer  citizenship  on  classes  of  persons  without  regard  to  birth 
or  naturalization.  Thus,  when  foreign  territory  is  acquired  by 
treaty,  it  is  competent  to  provide  in  the  treaty  that  the  inhabi- 


28o  Citizenship.  [§  196 

tants  of  the  territory  by  the  fact  of  continuing  to  permanently 
reside  within  such  territory  become  citizens.  So  it  is  com- 
petent for  Congress  to  provide  that  on  the  division  of  land  in 
an  Indian  reservation  among  the  members  of  the  Indian  tribe 
to  which  the  reservation  is  recognized  as  belonging,  the  Indians 
who  accept  their  shares  under  such  apportionment  become  citi- 
zens. (It  has  been  so  provided  in  acts  of  1887  and  other  stat- 
utes.) When  the  independent  state  of  Texas  was  admitted  into 
the  Union  by  act  of  Congress,  the  citizens  of  the  state  became 
citizens  of  the  United  States.  It  has  even  been  suggested  (in 
Boyd  v.  Thayer)  that  by  the  admission  of  a  state  into  the 
Union  which  has  previously  had  a  territorial  form  of  govern- 
ment, persons  who  were  recognized  by  the  territorial  laws  as 
possessing  political  privileges  became  citizens  of  the  United 
States  by  virtue  of  the  admission  of  the  state,  although  they  had 
been  enjoying  such  political  privileges  without  being  citizens 
of  the  United  States.  Without  attempting  to  specify  all  the 
methods  of  naturalization  it  is  sufficient  to  say  that  citizenship 
by  naturalization  may  be  conferred  by  treaty  or  by  statute, 
applicable  to  particular  classes  of  persons,  or  by  compliance 
on  the  part  of  any  particular  persons  with  the  naturalization 
laws. 

It  still  remains  to  be  definitely  determined  whether  by  the 
acquisition  of  territory  under  a  treaty  which  makes  no  provision 
as  to  citizenship,  and  without  any  act  of  Congress  on  the  sub- 
ject, the  permanent  inhabitants  of  such  territory  become  citi- 
zens. It  has,  however,  been  settled  that  when  foreign  territory 
by  treaty  becomes  territory  of  the  United  States,  the  persons 
permanently  residing  and  continuing  to  reside  therein  whether 
they  have  become  citizens  or  not  are  no  longer  aliens,  and  the 
statutes  of  the  United  States  regulating  immigrants  from  foreign 
countries  are  not  applicable  to  such  persons  {Gonzales  v. 
Williams), 

196.    Privileges  pertaining  to  United  States  Citizenship. 

Political  privileges  are  not  necessarily  incident  to  citizenship 
(above,  §  193),  but  citizenship  is  important  with  reference  to 


§196]  Privileges  of  Citizens.  281 

the  protection  to  which  the  citizen  is  entitled  while  outside  of 
the  limits  of  the  United  States,  and  also  as  to  privileges  to 
which  he  is  entitled  within  the  United  States  under  the  federal 
constitution  and  laws  and  under  the  constitutions  and  laws  of 
the  states. 

A  citizen  abroad  is  not  exempt  from  local  jurisdiction  in  the 
country  where  he  is  sojourning  or  temporarily  residing,  but  it  is 
the  duty  of  the  United  States  ta  secure  to  its  citizen  abroad 
the  equal  protection  of  the  laws  of  the  country  where  he  is 
sojourning,  and  in  countries  which  are  regarded  as  not  fully 
civilized,  such  as  Turkey  and  China,  he  is  accorded  the  specific 
privilege  of  being  tried  for  crimes  or  of  having  his  civil  rights 
determined  by  proceedings  before  officers  who  represent  the 
United  States  government.     (See  above,  §  165.) 

It  is  impossible  to  state  fully  the  privileges  and  immunities 
which  a  citizen  of  the  United  States  enjoys  and  is  entided  to 
have  protected  as  distinct  on  the  one  hand  from  mere  political 
privileges,  and  on  the  other  from  those  civil  rights  which  are 
guaranteed  to  all  persons  by  the  federal  constitution.  It  is 
evident  that  some  such  privileges  and  immunities  must  be 
recognized  as  incident  to  federal  citizenship,  for  the  Fourteenth 
Amendment,  after  specifically  describing  federal  and  state  citi- 
zenship, provides  that  "  No  state  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States."  These  privileges  and  immunities  are,  how- 
ever, different  from  those  pertaining  to  citizens  of  a  state  and 
which  are  not  to  be  denied  in  any  other  state  (see  above,  §  190). 
It  has  been  suggested  that  among  the  privileges  and  immunities 
incident  to  federal  citizenship  are  tlie  right  to  participate  in 
foreign  and  inter-state  commerce,  to  make  use  of  the  navigable 
waters  of  the  United  States,  to  enjoy  the  postal  privileges,  to 
petition  the  federal  government  and  visit  the  seat  of  govern- 
ment, to  participate  on  equal  terms  in  the  purchase  of  public 
lands,  and  to  sue  in  the  federal  courts,  if  by  the  provisions  of 
the  constitution  and  laws  regulating  the  jurisdiction  of  such 
courts  there  is  a  right  to  bring  such  suit.  (See  Ward  v.  Mary- 
land  and  Slaughter- Ho  use  Cases.)     Indeed  it  might  safely  be 


282  Citizenship.  [§  196 

said  that  the  right  of  a  citizen  of  the  United  States  to  remain 
within  its  limits,  or  to  go  into  a  foreign  country,  or  to  return  to 
the  United  States  from  such  country,  or  to  reside  in  such  part 
of  the  United  States  as  he  may  see  fit,  and  to  enjoy,  without 
discrimination  against  him,  all  the  benefits  and  the  protection 
of  the  constitution,  laws,  and  treaties  of  the  United  States  are 
privileges  and  immunities  which  cannot  be  denied  to  the  citizen 
either  by  the  federal  or  state  government. 

It  is  doubtful  whether  the  provision  in  the  Fourteenth 
Amendment  was  essential  as  a  guaranty  of  any  of  these  rights. 
They  would,  undoubtedly,  have  been  fully  recognized  and  pro- 
tected had  the  amendment  never  been  adopted.  The  im- 
mediate occasion  for  the  adoption  of  that  amendment  was  the 
fear  that  the  negroes  would  not  be  accorded  equal  protec- 
tion with  white  persons  in  some  of  the  states,  and  accordingly 
citizenship  was  so  defined  as  to  include  negroes  born  within 
the  limits  of  the  United  States  and  subject  to  the  jurisdic- 
tion thereof.  But  on  the  other  hand  it  must  not  be  assumed 
that  the  Fourteenth  Amendment  is  of  no  significance  otherwise 
than  as  applied  to  colored  persons.  The  provisions  of  the 
amendment  are  general  in  terms  and  are  of  universal  applica- 
tion, and  they  enunciate  rules  which  although  they  may  have 
been  previously  recognized  were  thought  to  be  of  so  funda- 
mental a  character  that  their  definite  statement  was  important. 

The  first  eight  amendments  to  the  federal  constitution  con- 
tain general  guaranties  which  were  primarily  intended  as  re- 
strictions on  the  powers  of  the  federal  government,  but  since 
the  adoption  of  Amendment  XIV  the  question  has  been 
raised  whether  these  guaranties,  which  were  not  originally 
intended  as  limitations  on  state  powers,  have  not  become 
privileges  and  immunities  of  the  citizens  of  the  United  States 
which  the  states  cannot  abridge.  For  instance,  in  Amend- 
ment V  it  is  provided  that  no  person  shall  be  held  to  an- 
swer for  a  capital  or  otherwise  infamous  crime  unless  on  the 
presentment  or  indictment  of  a  grand  jury,  and  in  Amendments 
VI  and  VII  the  right  to  trial  by  jury  in  civil  and  criminal  cases 
is  provided  for.     Now  there  is  no  reasonable  question  but  that 


§196]  Privileges  of  Citizens.  283 

these  provisions  as  originally  adopted  related  to  proceedings 
in  federal  courts  and  not  to  those  in  the  state  courts,  and  that 
a  state  might  by  proper  amendment  of  its  constitution  and 
change  of  its  laws  substitute  some  other  form  of  accusation  and 
indictment  in  criminal  cases  and  some  other  form  of  trial  than 
the  trial  by  jury  as  generally  known  in  all  the  states  of  the 
Union  in  which  the  common  law  is  recognized.  Since  the 
adoption  of  Amendment  XIV,  which  contains  the  further  pro- 
vision that  no  state  shall  "  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law,"  it  is  clear  that  some  form 
of  accusation  as  the  basis  of  a  trial  for  crime  and  some  form  of 
trial  in  a  judicial  tribunal  in  either  criminal  or  civil  cases  must 
be  provided ;  but  it  seems  to  be  well  settled  that  it  was  not 
intended  by  the  adoption  of  the  Fourteenth  Amendment  to 
restrict  the  state  as  to  the  matters  referred  to  in  the  first  eight 
amendments  and  that  those  amendments  continue  to  be  guar- 
anties as  against  the  exercise  of  federal  power,  and  not  limita- 
tions upon  the  power  of  the  states.     (See  above,  §  22.) 


CHAPTER   XXXV. 

POLITICAL   PRIVILEGES. 

197.    References. 

J.  Story,  Constitution,  §§  577-586,  and  (Cooley's  ed.)  §§  1969-1974;  T. 
M.  Cooley,  Constitutional  Limitations,  ch.  xvii;  J.  I.  C.  Hare,  Constitutional 
Law,  522-530;  J.  N.  Pomeroy,  Constitutional  Law,  §§  206-215;  T.  M. 
Cooley,  Constitutional  Law,  ch.  xiv,  §  2  ;  H.  C.  Black,  Constitutional  Law, 
§§  232-234;  Minor  v.  Happersett  (1874,  21  Wallace,  162;  McClain's 
Cases,  974;  Thayer's  Cases,  459);  Ex  Parte  Siebold  (1879,  100  U.  S. 
371 ;  Thayer's  Cases,  326) ;  Ex  parte  Yarborough  (1883,  no  U.  S.  651 ; 
Thayer's  Cases,  551) ;   Wiley  v.  Sinkler  (1900,  179  U.  S.  58). 

198.    Federal  and  State  Privileges. 

The  right  to  participate  in  the  affairs  of  government  and 
the  conditions  under  which  such  right  may  be  exercised  are 
primarily  within  the  control  of  the  respective  states ;  but  in  the 
territory  of  the  United  States  outside  of  state  hmits  they  are 
subject  to  the  control  of  Congress  (see  above,  §  193).  While 
the  general  theory  of  our  constitutional  system  involves  a  large 
and  full  participation  by  the  people  in  the  affairs  of  government, 
such  participation  has  never  been  recognized  as  the  natural 
right  of  an  individual  nor  as  a  right  necessarily  incident  to 
citizenship  {Mi?ior  v.  Happersetf).  The  right  of  suffrage,  the 
right  to  hold  office,  the  right  to  serve  on  juries,  and  other  like 
so-called  rights  are  in  reality  duties  and  privileges  imposed  and 
granted  for  the  public  good  and  not  for  individual  benefit. 
The  states  have  from  the  beginning  had  the  power  to  impose 
these  duties  and  accord  these  privileges  as  they  should  see  fit, 
and  the  constitution  and  laws  of  the  state  have  been  and  con- 
tinue to  be  the  source  of  political  privileges  in  the  states,  save 
as  certain  forms  of  discrimination  are  prohibited  by  the  Fifteenth 
Amendment.     Therefore,  a  person  who  has  enjoyed  the  privi- 

284 


§  zoo]  '  Suffrage.  285 

lege  of  voting  or  holding  office  in  one  state  does  not  necessarily 
have  the  like  privilege  in  another  state.  As  a  matter  of  fact 
the  proportion  of  citizens  who  have  political  privileges  in  many 
of  the  states  does  not  now  include  more  than  about  one-fifth  of 
the  whole  number,  for  in  all  states  children,  and  in  most  states 
women,  although  they  become  citizens  by  birth  or  naturalization 
as  fully  and  completely  as  adult  males,  are  excluded  from  partici- 
pating in  elections,  the  holding  of  office,  and  service  on  juries. 

199.    The  Fifteenth  Amendment. 

After  the  full  rights  of  citizenship  had  been  by  Amendment 
XIV  conferred  upon  negroes  who  came  within  the  description 
of  citizenship  enunciated  in  that  amendment,  it  was  thought 
desirable  that  such  persons  should  not  be  excluded  on  account 
of  their  race  or  color  from  participation  in  affairs  of  government 
under  the  same  conditions  imposed  as  to  white  persons  ;  and 
accordingly  Amendment  XV  was  incorporated  into  the  federal 
constitution  in  these  words:  ''The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  state  on  account  of  race,  color,  or 
previous  condition  of  servitude.'^ 

200.    Suffrage  and  Elections, 

From  what  has  already  been  said  in  this  chapter,  it  is  appar- 
ent that  the  elective  franchise  is  not  a  right  but  a  privilege, 
dependent  in  the  states  on  the  constitution  and  laws  of  each  state, 
subject  only  to  the  limitations  imposed  by  Amendment  XV. 
It  is  not  a  necessary  incident  of  citizenship,  although  it  is  now 
generally  conferred  in  the  states  on  all  adult  male  persons  over 
the  age  of  twenty-one  years  and  in  some  states  on  women  as 
well  as  men.  But  in  all  the  states  there  are  some  conditions, 
for  instance,  that  the  person  desiring  to  vote  must  have  been  a 
resident  of  the  state  for  a  specified  period,  or  that  he  shall  have 
been  registered.  Persons  convicted  of  a  crime  are  usually  ex- 
cluded, and  in  some  states  those  who  have  been  guilty  of 
bribery  or  of  engaging  in  a  duel,  or  those  who  have  failed  to 
pay  a  poll  tax. 


286  Political  Privileges.  [§  200 

Thus  it  is  apparent  that  not  even  all  adult  male  citizens  are 
entitled  to  exercise  the  elective  franchise,  for  a  citizen  of  the 
United  States  coming  into  a  state  with  the  intention  of  perma- 
nently remaining  becomes  at  once  a  citizen  thereof  and  his 
rights  as  a  citizen  cannot  be  made  dependent  upon  length  of 
residence. 

The  only  federal  officers  chosen  by  election  are  the  president, 
the  vice-president,  the  senators,  and  the  members  of  the  House  of 
Representatives.  The  president  and  vice-president,  as  already 
explained  (see  above,  §  40),  are  chosen  by  presidential  electors, 
and  these  are  selected  in  each  state  as  may  be  provided  by  the 
laws  of  the  state ;  so  that  the  qualifications  of  the  electors  who 
vote  for  presidential  electors  are  left  to  be  prescribed  by  the 
state  law.  Senators  are  chosen  by  the  legislatures  of  the  states 
(Const.  Art.  I,  §  3,  IF  i).  Members  of  the  House  are  chosen 
"  by  the  people  of  the  several  states  "  ;  and  it  is  provided  that 
the  electors  in  each  state  voting  for  members  of  Congress  "  shall 
have  the  quaUfications  requisite  for  electors  of  the  most  numer 
ous  branch  of  the  state  legislature  "  (Const.  Art.  I,  §  2,  U  i). 
In  this  sense  the  right  to  exercise  the  elective  franchise  with 
reference  to  the  selection  of  members  of  Congress  is  a  right  en- 
joyed by  reason  of  the  provision  of  the  federal  constitution  {^Ex 
parte  Yarborough  and  Wiley  v.  Sinkler),  and  yet  there  is  no 
uniform  set  of  qualifications  applicable  throughout  the  United 
States ;  but  the  specific  description  is  to  be  found  in  the  laws 
of  each  state. 

The  method  of  conducting  elections  and  determining  the 
result  is  regulated  by  the  constitution  and  laws  of  each  state, 
but  provisions  for  a  secret  ballot  are  now  almost,  if  not  quite, 
universal  in  the  states,  and  in  many  of  them  the  Australian 
Ballot  System  has  been  adopted,  by  which  the  state  authorities 
provide  a  uniform  ballot  containing  the  names  of  all  persons  to 
be  voted  for,  which  each  voter  marks  and  deposits  as  provided 
by  law.  The  general  objects  of  the  state  statutes  regulating 
elections  are  to  exclude  disqualified  persons  from  participating; 
to  enable  each  voter  to  express  his  individual  choice  without 
fear  of  criticism  and  without  being  influenced  by  bribery  or  in- 


§  2oi]  Holding  Office.  287 

timidation  and  without  fear  of  oppression ;  and  to  secure  a  fair 
and  honest  counting  of  the  ballots  and  determination  of  the  result 
of  the  election. 

By  the  federal  constitution  (Art.  I,  §  4,  H  i)  the  times, 
places,  and  manner  of  holding  elections  for  senators  and  repre- 
sentatives are  as  prescribed  in  each  state  by  the  legislatures 
thereof,  unless  Congress  has  made  regulations  on  the  subject. 
(See  above,  §  33.)  It  is,  however,  now  specifically  provided 
(Act  of  1899)  that  votes  for  representatives  in  Congress  must 
be  by  written  or  printed  ballot  or  voting  machine,  the  use  of 
which  has  been  duly  authorized  by  the  state  law.  The  only 
congressional  provisions  now  in  force  as  to  the  method  of  con- 
ducting elections  are  those  prohibiting  military  or  naval  officers 
from  interfering  with  the  freedom  of  elections  (Act  of  1865), 
and  prohibiting  distinction  of  race,  color,  or  previous  condition 
of  servitude  (Act  of  1870,  embodying  substantially  the  provi- 
sions of  Amend.  XV).  Provisions  of  the  act  of  1865,  for  the 
federal  supervision  of  elections,  were  repealed  in  1894.  But  the 
right  of  Congress  to  provide  for  regulation  of  elections  of  mem- 
bers of  the  House  of  Representatives  is  fully  established  i^Ex 
parte  Siebold). 

201.    The  Holding  of  Office. 

The  constitution  of  the  United  States  prescribes  the  qualifi- 
cations for  president,  senators,  and  representatives  (Art.  I,  §  2, 
IT  2,  §  3,  IF  3  ;  Art.  II,  §  i,  IF  4)  and  the  qualifications  for  ap- 
pointive officers  are  prescribed  by  the  statutes  regulating  their 
appointment.  The  state  constitutions  contain  similar  provisions 
as  to  qualifications  for  the  principal  elective  officers,  and  quali- 
fications for  other  officers  may  be  fixed  by  statute.  In  the 
absence  of  any  specific  statutory  provision  on  the  subject  it  is 
presumed  that  those  persons  who  are  qualified  voters  under  the 
constitution  and  laws  of  the  state  are  qualified  to  hold  office.  It 
is  apparent,  therefore,  that  a  public  office  or  the  privilege  of  hold- 
ing a  public  office  is  not  an  individual  right,  but  is  a  privilege 
conferred  by  law.  However,  one  who  has  been  duly  elected  to 
a  public  office  is  usually  regarded  as  having  as  to  the  discharge 


288  Political  Privileges.  [§  202 

of  the  duties  of  that  office  and  the  enjoyment  of  the  compensa- 
tion and  emoluments  attached  thereto  by  law  a  property  right 
which  the  courts  will  recognize  and  protect.  On  the  other  hand, 
such  right  is  generally  regarded  as  dependent  on  the  continu- 
ance of  the  office,  and  unless  there  is  some  constitutional  re- 
striction in  the  way,  the  right  may  be  terminated  by  abolishing 
the  office  and  the  office-holder  has  no  ground  for  complaint. 
Removal  from  an  office  which  continues  can,  however,  only  be 
effected  by  impeachment  or  some  other  proceeding  authorized 
by  law.  These  matters  are  so  far  controlled  by  the  peculiar 
provisions  of  the  constitution  and  laws  of  each  state  that  further 
general  discussion  is  impracticable. 

202.   Jury  Service. 

The  privilege  of  serving  on  juries,  when  selected  for  the  pur- 
pose according  to  the  provisions  of  law,  is  sometimes  spoken 
of  as  a  political  privilege  analogous  to  that  of  holding  office, 
and  the  method  of  selection  and  the  qualifications  are  regulated 
by  statute.  The  states  are  not  subject  to  any  limitations  in  this 
respect  by  the  federal  constitution  saye  that  the  provision  of  the 
Fourteenth  Amendment,  by  which  all  persons  are  guaranteed 
the  full  protection  of  the  laws,  has  been  held  to  imply  that  no 
class  of  persons  shall  be  excluded  from  serving  on  juries  on 
account  of  race  or  color.  Aside  from  this  implied  limitation, 
the  states  may  impose  such  restrictions  in  this  respect  as  they 
see  fit. 


Part  VIII. 
Civil    Rights. 


CHAPTER  XXXVI. 

GUARANTIES    TO   THE   INDIVIDUAL. 

203.    References. 

J.  R.  Tucker,  Constitution,  ch.  i ;  J.  W.  Burgess,  Political  Science,  I, 
174-232;  F.  Lieber,  Civil  Liberty  and  Self-Government,  chs.  i-iii;  W.  W. 
Willoughby,  Nature  of  the  State,  chs.  iv,  v ;  J.  Kent,  Commentaries,  lect. 
xxiv  ;  H.  C.  Black,  Constitutional  Lazv,  ch.  xviii ;  T.  M.  Cooley,  Constitu- 
tional Law  (3d  ed.),  246-248;  V/.  Blackstone,  Commentaries,  Hammond's 
ed.,  I,  pp.  47,  54,  and  notes  20  and  23,  pp.  144,  158 ;  J.  Wilson,  Lectures 
on  Jur'sprudenc3  (Andrews'  ed.),  II,  ch.  xii. 

204.    Natural  Rights  Protected. 

Organized  government  has  for  its  object  the  protection  of  the 
individual  against  undue  interference  on  the  part  of  others  with 
his  enjoyment  of  Hfe  and  the  beneficial  employment  of  his 
faculties.  The  statement  in  the  Declaration  of  Independence 
in  substance  that  governments  are  instituted  among  men  to 
secure  to  them  the  inalienable  privileges  of  hfe,  liberty,  and  the 
pursuit  of  happiness  is  a  practically  sound  statement  of  political 
philosophy.  The  statement  made  in  the  same  connection,  that 
all  men  are  created  equal,  is,  of  course,  to  be  construed  in  the 
connection  in  which  it  is  made  as  meaning  that  all  persons  have 
equal  rights  to  protection  and  enjoyment  of  life  and  liberty  and 
in  the  employment  of  their  faculties  as  they  see  fit,  so  far  as  the 
public  welfare  does  not  require  that  they  be  restricted  in  order 
that  others  may  have  the  same  enjoyment  of  life,  liberty,  and 
employment  of  their  faculties.  The  succeeding  statement  of 
19  289 


290         Guaranties  to  the  Individual.        [§  204 

that  instrument,  that  governments  derive  their  just  powers  from 
the  consent  of  the  governed,  is  also  to  be  understood  in  a 
general  sense  as  a  sound  statement  of  political  philosophy. 
Without  a  condition  of  equality  as  to  rights  to  be  enjoyed,  there 
could  not  be  a  government  which  would  substantially  represent 
the  views  and  wishes  of  a  majority  of  the  people.  It  is  evident 
that  the  consent  of  the  governed  here  referred  to  is  simply  the 
general  assent  which  the  majority  of  the  people  give  to  the 
government  under  which  they  live  and  which  they  choose  to 
obey.  It  is  plainly  not  meant  that  the  government  has  no 
authority  over  those  who  do  not  see  fit  to  assent  to  its  exercise 
of  authority. 

It  must  be  borne  in  mind  that  the  Declaration  of  Inde- 
pendence was  a  declaration  of  the  right  to  throw  off  the  author- 
ity of  an  established  government  and  institute  a  new  government 
in  its  place.  It  was  not  intended,  nor  does  it  purport  to  be  a 
statement  of  the  obligations  owed  by  the  individual  to  the 
established  government,  nor  the  obligation  of  the  government 
to  the  individual ;  but  the  purposes  of  government  will  not  be 
carried  out  in  accordance  with  the  principles  of  the  Declaration 
of  Independence,  unless  all  men  are  guaranteed  equality  before 
the  law,  that  is,  the  equal  right  to  protection  under  the  law  in 
the  enjoyment  of  individual  liberty,  so  far  as  it  can  be  secured 
without  depriving  other  persons  of  substantially  the  same  degree 
of  freedom  and  opportunity. 

The  rights  of  person  and  property  which  are  protected  by 
constitutional  provisions  are  sometimes  spoken  of  as  among  the 
natural  rights  of  human  beings.  In  some  sense  this  is  proper, 
for  they  are  among  the  rights  of  individuals  generally  recognized 
by  all  civilized  governments  ;  but  in  a  strict  sense  there  are  no 
rights  recognized  by  the  law  except  legal  rights.  However,  it 
is  not  improper  to  say  that  rights  which  are  recognized  and 
protected  under  our  system  of  law  and  which  are  such  as  are 
generally  protected  by  law  everywhere  are  on  that  account  pro- 
tected as  natural  or  inherent  rights  of  human  beings. 

Closely  connected  with  the  theory  of  natural  rights  which  is 
suggested  in  the  Declaration  of  Independence  and  announced 


§  204]  Natural  Rights.  291 

in  many  of  the  state  constitutions,  and  which  must  be  regarded 
as  a  part  of  the  philosophical  explanation  of  government  rather 
than  as  a  part  of  constitutional  law,  is  the  theory  of  the  so-called 
social  compact,  also  referred  to  in  many  state  constitutions  as 
well  as  in  the  Declaration  of  Independence,  to  the  effect  that 
the  obligation  of  the  citizen  to  the  government  is  one  arising 
only  by  the  implied  consent  to  be  governed.  This  theory, 
which  seems  to  have  originated  with  the  English  philosophers 
Hooker,  Hobbes,  and  Locke  during  the  seventeenth  century, 
was  fully  exploited  in  Rousseau's  Contrat  Social  (1762),  and 
obtained  wide  recognition  in  England,  France,  and  America. 
It  is  recognized  by  Blackstone  in  his  Com?nentaries  on  the  Laws 
of  England,  republished  in  America  in  1765,  and  generally 
accepted  throughout  the  colonies  as  a  correct  exposition  of  the 
English  constitution  and  system  of  laws.  The  social  compact 
theory  has  now,  however,  been  generally  discredited  as  a  philo- 
sophical doctrine  and  is  no  longer  of  any  significance  in  the 
explanation  of  the  powers  of  a  constitutional  government. 

It  is  to  be  noticed  that  nothing  is  said  in  the  Declaration  of 
Independence  as  to  equality  in  the  ownership  of  property,  or 
in  social  condition,  or  in  capacity  for  the  enjoyment  of  happiness. 
While  the  tendency  of  civilization,  especially  civilization  which 
has  been  influenced  by  Christianity,  is  to  give  better  opportunities 
to  those  who  by  reason  of  lack  of  health,  strength,  or  capacity 
are  under  a  disadvantage  in  the  competition  of  life,  it  has  not 
been  found  possible  nor  probably  will  it  be  found  possible  in 
any  social  condition  which  can  be  conceived  of,  to  ehminate 
differences  of  condition.  The  existence  of  a  competitive  struggle 
for  betterment  of  condition  seems  to  be  inherent  in  the  human 
constitution  ;  but  just  and  wise  governments  give  protection  to 
the  individual  in  order  that  he  may  not  be  deprived  of  the  oppor- 
tunity of  Hfe,  liberty,  and  the  beneficial  enjoyment  of  his  faculties 
so  far  as  his  strength  and  capacity  are  employed  in  ways  not 
interfering  with  the  enjoyment  of  like  opportunities  by  others. 

It  is  also  to  be  noticed  that  nothing  is  said  in  the  Declaration 
of  Independence  as  to  political  privileges  or  participation  in 
the   affairs   of  government.     It   is   evident   that   governments 


292  Guaranties  to  the  Individual.        [§  205 

established  for  the  securing  of  the  highest  possible  welfare  of 
their  subjects  will  necessarily  afford  some  participation  in  public 
affairs  on  the  part  of  those  who  are  to  be  governed  and  who 
have  in  general  the  qualifications  fitting  them  for  such  participa- 
tion. It  is  conceivable  that  a  monarchical  form  of  government 
might  secure  the  freedom  and  prosperity  of  its  subjects  to  a 
fuller  degree  than  a  popular  government,  but  this  would  be  so 
only  if  the  ruler  or  the  members  of  the  ruling  class  considered 
the  interests  of  all  its  subjects  as  equally  important  with  his  or 
their  own  interests ;  and  as  this  is  not  consistent  with  human 
nature,  it  is  essential  that  a  government  which  shall  have  for 
its  sole  object  the  best  interests  of  all  the  people  who  are  quali- 
fied to  participate  in  such  a  government  shall  afford  them  the 
opportunity  of  doing  so.  The  extent  of  such  participation  must 
be  determined  on  broad  principles  of  pubHc  policy  and  in  any 
particular  government  largely  in  accordance  with  the  established 
and  customary  forms,  for  it  is  the  efficient  administration  of 
the  system  of  government  to  which  a  people  are  accustomed 
rather  than  any  theoretical  perfection  of  the  system  which  pro- 
duces the  most  satisfactory  results. 

It  is  evident,  therefore,  that  there  is  a  fundamental  distinction 
between  political  rights  and  individual  rights.  The  enjoyment 
of  political  rights  is  simply  a  means  for  accomplishing  the  ulti- 
mate result  of  affording  the  best  protection  to  individual  rights, 
that  is,  the  largest  opportunities  which  may  be  given  to  one 
individual  consistently  with  the  enjoyment  of  similar  rights  by 
others.  Under  the  general  head  of  civil  rights,  it  is  now  proposed 
to  discuss  briefly  the  various  guaranties  found  in  the  federal  and 
state  constitutions  which  are  intended  as  restrictions  on  the 
powers  of  the  government,  in  order  that  the  enjoyment  of  the 
largest  practicable  measure  of  hberty  and  opportunity  shall  be 
secured  to  the  individual. 

205.    Classification  of  Individual  Rights  specially 
guaranteed  and  protected. 

The  guaranties  found  in  the  state  and  federal  constitutions 
which  are  intended  for  the  protection  of  the  individual  in  his 


§  205]  Individual  Rights.  293 

person,  his  liberty,  and  his  property  have  not  been  the  result  of 
any  theorizing  as  to  what  ought  to  be  secured  to  the  individual 
by  way  of  enjoyment ;  they  have  been  the  result  of  experience, 
and  they  relate  to  the  supposed  respects  in  which  it  has  been 
found  necessary  to  limit  the  powers  of  government  in  order 
that  the  largest  practicable  measure  of  individual  freedom  and 
opportunity  may  be  secured.  Nearly  all  of  them  may  be 
traced  more  or  less  directly  to  struggles  on  the  part  of  the 
people  against  the  unjust  exercise  of  powers  of  government  in 
England  and  in  this  country. 

The  guaranty  of  the  right  to  "  life  "  seems  to  be  intended 
as  a  safeguard  against  inflicting  death  on  persons  who  are 
regarded  as  obnoxious  to  the  government,  otherwise  than  as  the 
result  of  a  regular  and  orderly  procedure  for  the  punishment 
of  crime ;  hence,  the  provisions  with  reference  to  the  method 
of  accusation,  trial,  and  punishment  may  be  regarded  as  guar- 
anties intended  for  the  protection  of  the  right  to  life. 

But  liberty  is  equally  imperilled  by  criminal  proceedings 
which  are  not  in  accordance  with  regular  and  orderly  methods, 
and  by  imprisonment  inflicted  as  a  punishment  for  crime  for 
which  there  has  not  been  a  proper  conviction.  Therefore,  the 
provisions  with  reference  to  the  methods  of  criminal  procedure 
are  guaranties  both  as  to  hfe  and  liberty,  and  these  will  be 
considered  in  a  subsequent  chapter  as  among  the  provisions 
intended  for  the  protection  of  ci\^l  rights,  although  in  a  popular 
sense  immunity  from  unjust  or  illegal  criminal  punishment  is 
not  classified  among  the  civil  rights  of  the  individual. 

The  enjoyment  of  the  largest  measure  of  liberty  which  can 
consistently  be  guaranteed  by  organized  government  to  the 
individual  involves,  however,  much  more  than  protection  against 
unlawful  physical  restraint.  Liberty  is  a  most  comprehensive 
term.  It  suggests,  not  only  freedom  of  action,  but  the  unre- 
stricted enjoyment  of  the  result  of  beneficial  activity  so  far  as 
such  freedom  is  not  inconsistent  with  like  freedom  on  the  part 
of  others.  Civil  liberty  is  therefore  impaired  when  individuals 
are  deprived  of  protection  in  the  acquisition  and  enjoyment  of 
property,  for  the  accumulation  of  property  is  one  of  the  most 


294  Guaranties  to  the  Individual.        [§  205 

substantial  results  of  the  freedom  of  action,  the  desire  for 
acquisition  being  one  of  the  strongest  desires  of  human  beings. 
Hence,  proper  guaranties  of  civil  liberty  involve  guaranties  of 
property  rights  and  of  rights  to  pursue  profitable  occupations, 
and  to  make  and  enforce  contracts. 

The  social  instincts  involve  a  desire  to  communicate  with 
others,  either  for  the  mere  pleasure  of  social  intercourse  or  for 
the  purpose  of  persuading  or  inducing  others  to  act  in  accord- 
ance with  one's  wishes  or  for  his  benefit.  Therefore,  civil 
liberty  is  unduly  restricted  if  the  privilege  of  writing  and  speak- 
ing one's  views  and  sentiments,  so  far  as  the  privilege  may  be 
exercised  without  involving  injury  to  others,  is  impaired  or 
taken  away.  Hence,  the  so-called  freedom  of  speech  and  the 
press  is  among  the  rights  protected  by  constitutional  guaranties. 

Among  the  privileges  most  highly  prized  are  those  involving 
the  enjoyment  of  religious  forms  and  observances  according  to 
the  dictates  of  individual  conscience.  Therefore,  among  the 
provisions  for  securing  civil  liberty  are  those  prohibiting  the 
undue  interference  with  religious  beliefs  and  the  expression 
thereof  in  suitable  forms.  The  constitutional  provisions  relat- 
ing to  the  protection  of  these  various  forms  of  civil  liberty  will 
be  discussed  in  succeeding  chapters. 

Although  the  first  eight  amendments  to  the  federal  constitu- 
tion are  limitations  only  upon  the  powers  of  the  federal  govern- 
ment, and  serve  as  protections  of  the  rights  therein  guaranteed 
as  against  the  exercise  of  federal  authority,  and  have  no  appli- 
cation as  limitations  on  the  exercise  of  authority  by  the  state 
(see  above,  §§22,  196),  nevertheless  they  correspond  to  provi- 
sions found  in  many  of  the  state  constitutions  which  are  limita- 
tions upon  state  power,  and  the  clauses  of  the  federal  constitution 
may  therefore  be  made  the  text  for  discussion  in  separate  chap- 
ters of  the  various  rights  which  are  usually  guaranteed  by  state 
constitutions  as  well.  And  it  will  be  convenient  to  follow  the 
order  of  the  clauses  as  they  appear  in  these  amendments  in 
discussing  the  various  topics  suggested. 


CHAPTER   XXXVII. 

RELIGIOUS   LIBERTY. 

206.   References. 

J.  Story,  Constitution,  §§  1843-1849,  1870-1879;  T.  M.  Cooley,  Consti- 
tutional  Limitations,  ch.  xiii  ;  J.  R.  Tucker,  Constitution,  §  326;  J.  Bryce, 
American  Commomuealth,  ch.  ciii ;  T.  M.  Cooley,  Constitutional  Law,  ch. 
xiii,  §  I  ;  H.  C.  Black,  Constitutional  Law,  §§  196-198;  Pfeiffer  v.  Board 
of  Education  of  the  City  of  Detroit  {i^o^,  118  Mich.  560;  McClain's  Cases, 
879) ;  State  ex  rel.  Weiss  v.  District  Board  (1890,  76  Wis.  177  ;  McClain's 
Cases,  882);  Reynolds  v.  United  States  {i^yS,  ^^  U.  S.  145;  McClain's 
Cases,  883). 

207.    Religious  Equality. 

With  reference  to  religious  liberty,  it  is  provided  in  Amend- 
ment I,  that  "Congress  shall  make  no  law  respecting  the 
establishment  of  religion  or  prohibiting  the  free  exercise 
thereof,"  and  in  the  constitution  as  originally  adopted  it  is 
declared  that  "no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United 
States  "  (Art.  VI,  ^  3).  The  prohibition  of  religious  tests  as  a 
qualification  for  holding  office  is  now  of  universal  recognition 
throughout  the  United  States,  and  originated,  no  doubt,  with  the 
protest  in  England  against  the  exercise  of  authority  on  the  part 
of  the  government,  the  reigning  family  of  which  belonged  to 
one  religious  sect,  in  excluding  from  participation  in  public 
affairs  those  of  other  sects.  This  form  of  religious  liberty  has 
now  been  practically  recognized  in  England,  although  complete 
religious  equality  has  not  been  established  in  that  country. 

Some  state  constitutions  have  an  additional  provision  analo- 
gous in  its  nature,  that  no  person  shall  be  incompetent  to  give 
evidence  in  court  in  consequence  of  his  opinion  on  the  subject 
of  rehgion  ;  but  notwithstanding  such  a  provision,  it  is  usually 
regarded  as  permissible  to  inquire  into  the  question  whether  a 

295 


296  Religious  Liberty.  [§  207 

witness  has  religious  convictions  and  a  belief  in  punishment 
after  death,  as  bearing  upon  the  question  whether  he  is  likely 
to  appreciate  the  solemn  obligation  of  an  oath ;  for  the  legal 
oath  as  administered  according  to  forms  generally  in  use  in- 
volves an  appeal  to  a  Supreme  Being.  However,  the  object  of 
the  courts  in  requiring  the  administration  of  an  oath  to  wit- 
nesses is  to  secure  so  far  as  practicable  the  speaking  of  the 
truth,  and  the  oath  may  be  varied  so  as  to  impose  upon  the 
witness  in  the  manner  most  effectual  as  to  him  the  obligation  to 
speak  the  truth. 

Religious  toleration  is  also  the  rule  in  all  states,  and  involves 
as  it  is  sometimes  expressed  the  right  to  worship  God  according 
to  the  dictates  of  one's  own  conscience.  But  as  a  civil  right, 
religious  freedom  is  broader  than  this  and  involves  freedom 
from  compulsion  with  reference  to  any  religious  observances. 
The  establishment  of  any  religion  by  the  state  is  inconsistent 
with  religious  liberty,  for  it  must  necessarily  result  in  some  dis- 
crimination against  or  compulsion  upon  persons  who  con- 
scientiously adhere  to  some  other  form  of  religion  or  are  not 
believers  in  any  religion.  The  union  of  church  and  state  in 
any  form  or  for  any  purpose  is  inconsistent  with  our  constitu- 
tional theory  of  government.  It  is  widely  recognized  in  the 
United  States  as  beyond  the  proper  functions  of  civil  govern- 
ment to  concern  itself  with  the  religious  beliefs  of  its  subjects, 
so  far  as  such  beliefs  do  not  lead  to  actions  inconsistent  with 
the  public  health,  public  morals,  or  general  welfare  of  the 
people.  In  other  words,  government  concerns  itself  with  acts 
rather  than  with  beliefs  or  motives. 

Complete  religious  liberty  does  not,  however,  necessitate  an 
ignoring  in  public  affairs  of  the  fact  that  men  in  general  enter- 
tain religious  beliefs  and  that  the  Christian  religion  is  the  pre- 
dominating form  of  religious  belief  among  the  people  of  the 
United  States.  Forms  of  religious  observances  in  accordance 
with  the  accepted  doctrines  of  Christianity  are  generally  recog- 
nized or  acquiesced  in  by  public  authorities.  Thus,  it  is  cus- 
tomary in  the  houses  of  Congress,  and  in  many  if  not  all  of  the 
legislative  bodies  in  the  states,  to  have  the  proceedings  opened 


§  2o8]  Toleration.  —  Support.  297 

with  public  prayer  offered  in  accordance  with  the  general  beliefs 
entertained  by  Christian  denominations,  although  it  is  not 
usual  to  give  any  preference  or  exclusive  privilege  to  the  forms 
practised  by  one  denomination  over  those  of  others.  It  is  cus- 
tomary also  for  the  president  of  the  United  States  and  the 
governors  of  the  various  states  by  public  proclamation  to  set 
apart  a  special  day  in  each  year  for  thanksgiving ;  and  special 
occasions  for  thanksgiving  are  sometimes  indicated  in  the  same 
way.  Chaplains  are  appointed  and  paid  by  the  federal  govern- 
ment to  perform  religious  offices  in  the  army  and  navy  and  by 
state  governments  in  the  various  state  institutions.  By  law 
ministers  of  the  gospel  and  other  religious  teachers  are  some- 
times exempt  from  jury  service  and  prohibited  from  testifying 
as  to  communications  made  to  them  in  their  religious  capacity. 
These  various  provisions  are  not  in  the  nature  of  the  establish- 
ment of  religion,  or  any  form  of  religion,  but  rather  in  recog- 
nition of  the  fact  that  by  general  custom  religion  is  considered 
not  inimical  to  but  rather  promotive  of  the  public  welfare. 

208.    Taxation  for  the  Support  of  Relig;ion. 

Complete  religious  liberty  is  not,  however,  secured  by  ex- 
emption from  religious  tests  as  a  qualification  for  voting  and 
holding  office,  nor  by  guaranteeing  toleration  and  freedom  from 
restraint  as  to  religious  beliefs.  Any  exaction  of  support  for 
religious  organizations  or  observances  by  way  of  taxation  would 
also  be  an  interference  with  religious  liberty.  The  same  causes 
which  forbid  restraint  or  compulsion  of  the  person  with  regard 
to  religion  would  also  forbid  compulsory  contribution  of  property 
for  its  support,  and  the  various  state  constitutions  generally  con- 
tain some  prohibition  of  this  character.  Such  a  prohibition  not 
only  prevents  the  establishment  of  a  state  church  to  be  sup- 
ported by  taxation,  but  also  precludes  the  support  by  public 
taxation  of  educational  institutions  devoted  to  the  promulgation 
of  any  particular  form  of  religion. 

The  controversies  which  have  actually  arisen  in  the  courts  as 
to  religious  liberty  have  related  for  the  most  part  to  the  use 
of  public  money  in  aiding  the  schools  under  the  control  of  some 


298  Religious  Liberty.  [§  208 

particular  religious  sect  or  the  introduction  into  schools  sup- 
ported by  public  taxation  of  some  form  of  religious  worship  or 
instruction.  (See  Pfeiffer  v.  Board  of  Education  and  State  v. 
District  Board.')  No  satisfactory  rule  can  be  derived  from  the 
decisions  of  the  courts  with  reference  to  these  questions,  for 
the  reason  that  they  have  been  made  in  applying  the  particular 
provisions  of  the  different  state  constitutions,  which  are  by  no 
means  uniform  in  their  requirements ;  but  this,  perhaps,  may 
safely  be  said,  that  the  reading  without  comment  of  portions 
of  the  bible  in  the  public  schools  is  not  an  interference  with 
religious  liberty,  provided  attendance  at  such  exercise  is  not 
made  compulsory  on  the  part  of  the  scholars  who  desire  to  be 
excused,  or  whose  parents  desire  to  have  them  excused,  on 
account  of  conscientious  scruples.  With  regard  to  the  use  of 
public  money  in  aiding  sectarian  schools  a  similar  principle 
must  be  applied,  and  if  attendance  in  the  school  is  permitted 
only  to  those  entertaining  some  particular  form  of  religious 
belief,  or  if  the  school  gives  some  form  of  religious  instruction, 
or  if  it  imposes  any  conditions  which  exclude  pupils  on  account 
of  religious  belief  or  want  of  belief,  it  cannot  properly  be  given 
appropriations  or  support  from  the  funds  raised  by  public 
taxation. 

Similar  questions  have  been  raised  as  to  the  constitutionality 
of  exemptions  from  taxation  of  property  devoted  to  religious 
purposes.  It  might  reasonably  be  argued  that  to  exempt 
property  devoted  to  sectarian  purposes  from  taxation  is  in  effect 
to  promote  such  purposes  at  the  public  expense,  but  it  may  be 
said,  on  the  other  hand,  that  such  property  is  devoted  to  a 
benevolent  purpose  and  a  purpose  which  the  state  may  legiti- 
mately encourage  in  the  same  way  that  property  devoted  to 
the  use  and  support  of  private  educational  institutions,  libraries, 
charitable  societies,  and  other  like  objects  is  devoted  to  a  use 
beneficial  to  the  public,  and  may  be  exempted  from  taxation 
on  the  same  general  grounds.  The  amount  of  taxation  of 
which  the  state  is  deprived  by  the  exemption  of  property 
devoted  to  religious  purposes  is  so  small  as  compared  with  the 
total  amount  realized  from  general  taxation,  that  the  increase 


§  209]  Sunday  Laws.  299 

of  burden  thus  thrown  on  other  property  owners  may  reasonably 
be  disregarded.  Moreover,  the  exemption  of  such  property 
is  not  directly  but  only  indirecdy  and  remotely  the  imposition 
of  any  pecuniary  burden,  and  such  exemptions  are  generally 
sustained  as  proper  when  authorized  by  law. 

209.    Sunday  Laws ;  Blasphemy,  etc. 

In  the  promotion  of  the  general  public  welfare,  the  law- 
making power  may  properly  take  into  account  the  fact  that 
the  great  majority  of  the  people  recognize  as  desirable  the 
setting  apart  of  the  first  day  of  the  week  as  a  day  on  which 
ordinary  business  shall  be  suspended  in  order  that  they  may 
have  opportunity  for  undisturbed  religious  assemblies  and  exer- 
cises if  they  see  fit ;  and  it  is  regarded  as  proper  and  constitu- 
tional to  prohibit  the  transaction  of  business  or  the  performance 
of  labor  on  such  day,  save  as  may  be  necessary  to  the  public 
welfare  or  promotive  of  charity  or  religion.  Such  statutory  pro- 
visions are  supported,  not  as  intended  directly  to  compel  or 
promote  religious  observances,  but  rather  as  securing  the  general 
tranquillity  and  welfare  of  the  people.  Perhaps  a  Sunday  law 
could  be  sustained  on  the  theory  that  it  is  conducive  to  the 
general  health  and  prosperity  of  the  people  that  they  have  an 
opportunity  to  devote  one  day  in  seven  to  rest  from  their 
regular  callings.  Without  inquiring  very  particularly  into  the 
grounds  on  which  Sunday  laws  have  been  sustained  it  is  sufficient 
to  say  that  they  have  been  generally  held  to  be  constitutional, 
even  as  to  persons  whose  conscientious  belief  requires  them  to 
set  apart  some  other  day  of  the  week  for  religious  purposes ; 
but  it  is  not  unusual  to  exempt  from  the  provisions  of  the  law 
those  who  conscientiously  observe  some  other  day. 

Laws  for  the  punishment  of  profane  swearing  and  blasphemy 
are  also  sustained,  as  calculated  to  prevent  conduct  shocking 
and  obnoxious  to  the  general  sentiments  of  the  people  and  pro- 
ductive of  disturbance  and  disorder.  Punishment  for  such 
offences  is  not  imposed  on  account  of  the  moral  wrong  done, 
but  on  account  of  the  injury  to  others  which  results. 

Disturbance  of  religious  worship  is  generally  punishable,  but 


300  Religious  Liberty.  [§210 

this  is  rather  for  the  preservation  of  the  public  peace  and  pro- 
tection of  the  people  in  the  exercise  of  religious  liberty  than  as 
a  recognition  of  religion  in  any  form.  In  this  instance,  as  in 
others,  the  government  in  making  and  enforcing  the  laws  has 
regard  to  the  general  peace  and  welfare  rather  than  to  the  pro- 
tection of  religion. 

210.    Religious  Belief  no  Defence  for  Violating  Law. 

When  in  the  exercise  of  its  legitimate  authority  and  for  pur- 
poses recognized  as  proper  to  be  considered  and  promoted,  the 
legislative  power  has  prohibited  any  act  or  line  of  conduct, 
the  conscientious  belief  that  such  prohibition  is  wrong  and  that 
the  act  or  conduct  prohibited  is  required  as  a  religious  duty 
will  not  be  an  excuse  or  defence  for  a  violation  of  the  law.  Re- 
ligious liberty  does  not  include  or  involve  the  right  or  duty  to 
violate  the  law.  It  is  not  necessary  here  to  enter  into  any  phil- 
osophical discussion  as  to  possible  conflicts  between  the  law  of 
the  land  and  any  assumed  natural,  moral,  or  higher  law.  For 
the  purposes  of  government,  its  authority  exercised  within  its 
recognized  sphere  must  be  paramount  to  any  other  authority. 
Therefore,  conscientious  behef  that  war  is  wrong  or  immoral  or 
contrary  to  divine  law  will  not  justify  a  refusal  to  pay  taxes  for 
the  raising  of  funds  to  be  used  in  military  operations  ;  and  the 
persons  thus  refusing  to  contribute  to  the  support  of  the  govern- 
ment in  the  exercise  of  one  of  its  recognized  functions  can 
properly  be  subjected  to  whatever  penalty  or  punishment  is 
provided  in  such  cases.  Likewise,  compulsory  military  service 
may  be  required  of  such  persons.  But  in  the  full  recognition 
of  religious  liberty  it  may  be  provided  that  persons  who  have 
a  conscientious  objection  to  war  may  be  excused  from  military 
service  on  payment  of  some  pecuniary  equivalent.  As  a  further 
illustration  of  the  principle  that  religious  belief  is  no  excuse  for 
violation  of  law  it  has  been  held  that  persons  entertaining  the 
belief  recognized  by  one  branch  of  the  Mormon  church  that 
polygamy  is  morally  right  and  commendable,  may  without  inter- 
ference with  their  religious  belief  be  required  to  abstain  from 
polygamous  marriages  on  penalty  of  criminal  punishment  {Rey- 
nolds V.  United  States), 


CHAPTER  XXXVIII. 

FREEDOM   OF   SPEECH   AND   THE   PRESS. 

211.    References. 

J.  Story,  Constitution,  §§  1880-1892  ;  T.  M.  Cooley,  Constitutional  Limi- 
tations, ch.  xii;  J.  R.  Tucker,  Constitution,  669,  670  ;  T.  M.  Cooley,  Con- 
stitutional Law,  ch.  xiv,  §  5  ;  H.  C.  Black,  Constitutional  Law,  §§  235-242  ; 
T.  M.  Cooley,  Torts,  ch.  vii;  E,  A.  Jaggard,  Torts,  ch.  viii ;  M.  L.  Newell, 
Slander  &^  Libel ;  W.  Blackstone,  Commentaries,  III,  123-126,  IV,  150- 
153;  Ex  parte  Jackson  (1877,  96  U.  S.727)  ;  Ln  re  Rapier  \\%i)2,  143  U.  S. 
no  ;  McClain's  Cases,  478;  Thayer's  Cases,  732)  ;  Public  Clearing  House 
V.  Coyne  (1904,  194  U.  S.  497). 

212.    Constitutional  Provisions  as  to  Expression  of  Opinion. 

The  state  constitutions  usually  contain  guaranties  of  freedom 
of  speech  and  the  press  similar  to  those  found  in  the  federal 
constitution,  that  "  Congress  shall  make  no  law  .  .  .  abridging 
the  freedom  of  speech  and  of  the  press  "  (Amend.  I).  But  it 
is  not  intended  by  such  prohibitions  to  guarantee  the  right, 
without  restraint  or  liability,  to  utter  or  publish  matter  which 
may  be  injurious  to  individuals  or  detrimental  to  public  peace 
and  tranquillity.  By  the  common  law  of  England,  which  has 
been  fully  recognized  in  this  respect  in  the  various  states,  libel, 
that  is,  the  publication  of  defamatory  matter  by  printing  or  writ- 
ing, is  punishable  criminally ;  and  injurious  utterances,  whether 
in  writing  or  print  or  by  spoken  word,  have  also  been  recog- 
nized as  a  ground  of  action  for  the  recovery  of  damages  by  the 
person  thereby  injured. 

The  object  of  the  constitutional  guaranties  as  to  freedom  of 
speech  and  the  press  seems  to  be  to  prevent  the  exercise  of  the 
power  of  the  government  in  the  regulation  beforehand  of  what 
shall  be  published  and  the  suppression  of  publications  on  ac- 
count of  their  supposed  injurious  consequences.  In  European 
countries  supervision  over  publication  is  exercised  to  some  extent 

301 


302  Free  Speech  and  Press.  [§213 

by  public  officials  charged  with  determining  what  is  likely  to  be 
injurious  to  the  government  or  the  people,  and  the  power  is 
also  exercised  of  suppressing  newspapers  and  books  which  are 
deemed  to  be  harmful  to  tranquillity  or  good  morals.  Similar 
powers  had  been  exercised  by  the  government  of  England 
prior  to  the  independence  of  the  colonies,  and  had  been  the 
subject  of  much  discussion  and  discontent;  and  the  eifect  of 
the  constitutional  guaranties  is  rather  to  deny  to  the  government 
any  such  power  of  supervision  than  to  relieve  persons  from 
civil  or  criminal  liability  for  wrongful  and  injurious  publication. 

In  other  words,  under  our  constitutional  system  freedom  of 
speech  and  of  the  press  is,  like  any  other  civil  right,  subject  to 
regulation  by  law  in  the  exercise  of  the  general  police  power, 
and  may  be  enjoyed  only  so  far  as  it  is  not  thus  prohibited,  and 
each  person  exercises  this  freedom  subject  to  the  same  general 
restrictions  which  are  by  law  imposed  upon  the  exercise  of 
freedom  in  any  other  respect.  It  will  therefore  be  necessary 
to  notice  some  of  the  general  restrictions  which  are  imposed  by 
law  in  order  to  understand  the  extent  and  nature  of  freedom  of 
speech  and  the  press.  These  restrictions  are  found  in  the 
statutory  or  common-law  rules  relating  to  slander  and  libel. 

213.    Slander  and  Libel. 

One  may  do  injury  to  another  in  his  property  rights,  in  his 
feelings,  and  in  his  reputation,  by  making  to  others  false  and 
defamatory  statements  about  him.  Such  statements  made  by 
word  of  mouth,  and  not  in  writing,  in  print,  by  caricature,  or 
in  some  other  tangible  form,  are  denominated  slander ;  and  the 
person  injured  is  entitled  to  maintain  an  action  against  the 
wrong-doer  to  recover  damages  for  the  injuries  suffered.  There 
is  in  general  no  criminal  punishment  for  slander ;  but  spoken 
words  may  be  criminally  punishable  on  other  grounds,  as 
amounting  to  blasphemy,  or  being  obscene,  or  calculated  to  dis- 
turb the  public  peace,  and  the  like  ;  that  is,  in  general,  spoken 
words  are  not  the  subject  of  criminal  punishment  on  account  of 
injuries  to  individuals,  but  only  on  account  of  some  harm  to  the 
public.     In  a  civil  action  for  slander  the  truth  of  the  words 


§  214]  Libels.  303 

spoken  is  a  defence,  for  the  injured  party  is  not  to  be  heard 
to  say  that  he  has  been  damaged  by  the  speaking  of  the  truth 
concerning  him.  Even  where  the  words  are  untrue  they  may 
have  been  spoken  without  mahce  and  upon  a  proper  occasion, 
so  as  not  to  constitute  an  actionable  wrong. 

In  a  general  sense  libel  may  be  said  to  be  publication  by 
written  or  printed  language  or  caricature,  or  some  tangible 
method  of  conveying  thought  or  information  of  matter  which  is 
defamatory  and  injurious  in  its  character.  Such  matter  may  be 
considered  with  reference  to  its  injurious  effect  upon  the  govern- 
ment, its  tendency  to  disturb  the  pubHc  peace  or  impair  the  public 
morals,  its  tendency  to  injure  the  individuals  directly  concerned, 
thus  impairing  the  security  of  property  and  reputation,  and  its 
actual  injurious  consequences  as  affecting  the  particular  indi- 
viduals injured  such  as  to  entitle  them  to  recover  damages.  In 
some  of  these  respects  libel  constitutes  a  crime ;  in  others  it 
forms  a  basis  for  the  recovery  of  damages  in  a  civil  action. 

214.    Libels  on  Government  and  Injurious  Publications. 

In  England  publications  tending  to  bring  the  government 
into  contempt,  or  to  impair  its  authority,  were  at  one  time  pun- 
ishable criminally  ;  but  the  theory  of  our  system  of  government 
is  that  it  exists  only  for  the  benefit  of  the  people,  and  therefore 
that  it  is  unwise  to  restrain  full  discussion  and  criticism  of  its 
acts  and  policies.  Therefore,  prosecutions  for  libels  on  the 
government,  whether  state  or  federal,  are  practically  unknown. 
Defamatory  statements  as  to  the  acts  or  conduct  of  a  public 
official  might  be  such  as  to  be  punishable  criminally,  or  to  form 
a  basis  for  an  action  for  civil  damages  sustained  by  him  as  an 
individual ;  but  neither  criminally  nor  civilly  could  the  persons 
responsible  for  the  defamatory  publication  be  called  to  account 
for  the  wrong  as  a  specific  injury  to  the  government  itself. 
Censorship  of  the  press  by  the  government  in  its  own  interests 
and  for  its  own  protection  is  not  regarded  as  a  proper  exer- 
cise of  authority,  either  with  reference  to  publications  threat- 
ened or  anticipated,  or  as  to  those  actually  made.  This  liberty 
of  persons  in  respect  to  the  government  may  be  sometimes 


304  Free  Speech  and  Press.  [§215 

exercised  for  improper  purposes  and  with  injurious  conse- 
quences ;  but  the  general  public  good  is  on  the  whole  pro- 
moted by  this  absolute  freedom  of  discussion,  and  the  resulting 
advantages  are  deemed  to  outweigh  any  possible  injurious 
consequences. 

■  The  publication  of  defamatory  matter  may,  however,  be 
productive  of  disturbance  and  disorder,  and  in  that  sense  may 
be  a  public  wrong  punishable  as  a  crime.  In  this  form  of 
libel  the  injury  sought  to  be  avoided  is  that  to  the  public  peace 
and  tranquillity.  For  the  protection  of  the  public  morals  it  may 
be  made  criminal  to  publish  obscene  or  scandalous  matters ; 
and  for  similar  reason  the  federal  government  prohibits  the 
sending  of  obscene  publications  through  the  mails.  The  public 
morals  as  well  as  the  public  health  are  regarded  as  proper 
subjects  for  legislation  in  the  promotion  of  the  general  welfare 
of  the  people. 

215.  Defamation  of  Individuals. 

The  security  of  individuals  against  defamation  calculated  to 
injure  them  in  their  property  rights,  or  in  their  feelings  or  their 
reputation,  is  a  proper  matter^ for  consideration  by  the  law;  and 
it  is  therefore  generally  regarded  as  criminal  to  publish  any 
matter  calculated  to  bring  individuals  into  contempt,  or  subject 
them  to  ridicule,  or  to  destroy  their  good  reputation.  Such  a 
wrong  is  regarded  as  a  public  injury  in  the  same  sense  as  wrong- 
ful appropriation  or  destruction  of  the  property  of  individuals ; 
and  while  the  individual  concerned  may  be  alone  directly  dam- 
aged, it  is  for  the  protection  of  the  public  in  general  against 
similar  injuries  that  such  acts  are  treated  as  crimes.  Moreover, 
the  publication  with  reference  to  individuals  of  defamatory  mat- 
ter is  calculated  to  cause  disorder  and  is  in  that  sense  a  public 
wrong. 

It  is  evident  that  the  publication  of  defamatory  matter  may 
be  objectionable  from  the  point  of  view  of  the  public  tranquillity 
and  security,  although  it  is  in  fact  true ;  and  therefore  in  prose- 
cutions for  libel  as  a  crime,  the  truth  of  the  defamatory  matter 
published  is  not  necessarily  any  defence.     But  there,  may  well 


§  2i6]         Defamation  of  Individuals.  305 

be  just  occasion  for  publishing  defamatory  matter  which  is  true, 
as,  where  it  relates  to  the  conduct  of  a  public  officer  or  the 
character  of  one  who  is  a  candidate  for  office  ;  and  it  is  usually 
provided  in  state  constitutions  in  some  form  of  language  that 
in  criminal  prosecutions  for  libel  the  truth  of  the  defama- 
tory matter  may  be  shown  and  will  constitute  a  defence  if  it 
appears  that  the  publication  was  with  good  motives  and  for 
justifiable  ends. 

In  many  state  constitutions  it  is  also  provided  that  in  criminal 
prosecutions  for  libel,  the  jury  shall  be  judges  of  the  law  as 
well  as  of  the  facts.  This  modification  of  the  ordinary  rule  as 
to  jury  trials,  that  the  court  determines  questions  of  law  and 
leaves  only  the  facts  to  be  determined  by  the  jury,  is  due  to  a 
peculiarity  of  the  English  law,  in  accordance  with  which  judges 
were  in  the  habit  of  instructing  juries  that  the  fact  of  publica- 
tion of  the  alleged  defamatory  matter  was  alone  to  be  deter- 
mined, it  being  for  the  court  to  say  whether  the  publication  was 
in  fact  defamatory,  or  whether  it  was  privileged.  There  seems 
to  be  no  substantial  difference,  however,  under  such  a  constitu- 
tional provision,  between  a  prosecution  for  libel  and  a  prosecu- 
tion for  any  other  crime  ;  the  judge  directs  the  jury  as  to  the  law, 
and  the  jury  determines  whether  the  facts  are  such  as  to  consti- 
tute a  crime  as  defined  by  the  court. 

A  person  may  be  directly  damaged  in  his  property  rights  or 
in  his  feelings  or  reputation  by  defamatory  publications  made 
concerning  him  ;  and  for  such  damage  he  is  entided  to  recover 
compensation  in  a  civil  action  brought  against  the  person 
wrongfully  causing  injury  to  him.  In  such  action  the  truth  of 
the  defamatory  matter  may  be  shown  by  way  of  defence,  for 
here,  as  in  the  case  of  slander  referred  to  in  a  preceding  section, 
the  policy  of  the  law  is  not  to  recognize  as  a  civil  injury  the 
detriment  suffered  from  the  publication  of  the  truth. 

216.  Privileged  Publications. 

It  has  been  said  in  the  preceding  section  that  in  a  criminal 
prosecution  for  libel  the  defendant  may  show  the  truth  as  a 
defence  if  the  publication  was  with  good  motives  and  for  justifi- 


306  Free  Speech  and  Press.  [§  216 

able  ends.  Such  a  publication  is  said  to  be  privileged ;  and 
the  ends  which  will  justify  publishing  defamatory  matter  which 
is  true  are  various.  Not  only  is  it  justifiable  in  the  public 
interest  to  publish  the  truth  as  to  the  conduct  of  public  officers, 
and  as  to  the  character  of  those  who  are  candidates  for  office 
so  far  as  their  character  is  a  subject  for  proper  consideration  in 
determining  their  fitness  for  the  office ;  but  in  general  the  truth 
may  be  pubhshed  although  injurious  to  individuals  if  it  in  any 
way  concerns  matters  of  proper  public  interest. 

For  a  better  understanding  of  the  reasons  which  underlie  the 
doctrines  of  privilege,  not  only  as  relating  to  criminal  prosecu- 
tions, but  also  as  affecting  hability  in  civil  suits  for  damages,  it 
will  be  convenient  to  divide  cases  of  privilege  into  those  which 
are  absolute  and  those  which  are  qualified.  There  are  some 
subjects  as  to  which  it  is  necessary  to  make  statements  in  writ- 
ing or  print,  which  are  of  such  nature  that  the  public  interest 
requires  that  no  one  shall  be  held  accountable  for  them  unless 
they  are  mahciously  made  for  the  purpose  of  causing  injury. 
Thus,  the  attorneys  for  the  parties  in  judicial  proceedings  are 
required  to  set  forth  the  facts  which  they  rely  upon  as  constitu- 
ting the  cause  of  action  or  the  defence  ;  and  the  proper  admin- 
istration of  justice  renders  it  essential  that  they  be  allowed  to 
do  so  without  danger  of  being  called  to  account  for  the  untruth 
of  the  statements  made.  The  truth  of  the  statements  is  to  be 
determined  by  the  court  as  affecting  the  rights  of  the  parties  in 
the  proceeding.  Therefore,  the  written  pleadings  as  well  as 
the  records  made  by  judicial  officers  in  a  case  in  court  are 
publications  which  are  absolutely  privileged,  and  no  prosecu- 
tion or  civil  suit  can  be  predicated  on  statements  thus  made, 
unless,  perhaps,  where  it  can  be  shown  that  they  were  not  made 
in  good  faith  for  the  purposes  of  the  case,  but  were  maliciously 
and  wantonly  made  with  the  object  of  doing  injury  to  others. 
For  like  reasons  the  publication  in  newspapers  of  the  actual 
proceedings  in  a  court  is  privileged,  for  such  proceedings  are 
public  in  their  nature.  Members  of  a  legislative  body  should 
be  at  liberty  to  discuss  fully  any  question  properly  coming  be- 
fore such  body  for  discussion ;    no  member  can  be  called  to 


§2i6]  Privileged  Publications.  307 

account  otherwise  than  by  the  body  itself  for  what  is  said  or 
published  by  him  in  the  discharge  of  his  office  ;  and  a  news- 
paper publication  of  the  proceedings  of  such  bodies  is  likewise 
absolutely  privileged. 

Freedom  of  the  press  involves  also  a  full  discussion  of  mat- 
ters of  public  concern.  One  who  expresses  his  views  as  to 
such  matters  on  a  proper  occasion  and  in  a  proper  way,  with 
good  motives,  should  not  be  held  accountable  in  a  criminal  or 
a  civil  proceeding,  although  other  persons  may  be  injuriously 
affected.  Thus  it  is  lawful  to  discuss  the  conduct  of  public 
officers  and  the  character  of  candidates  for  office,  to  comment 
on  judicial  proceedings,  to  criticise  books  and  pictures,  to  pub- 
lish the  news  in  the  ordinary  course  of  business,  and  otherwise 
to  attempt  to  enlighten  the  public  as  to  the  affairs  in  which  they 
have  an  interest.  With  reference  to  these  matters,  which  are 
subject  to  qualified  privilege,  the  requirements  are  that  the 
publication  be  in  good  faith  and  not  for  the  purpose  of  mali- 
ciously injuring  others,  and  also  so  far  as  the  publication  pur- 
ports to  state  facts,  that  it  be  true  ;  for  while  good  motives  and 
justifiable  ends  will  relieve  from  liability  for  the  publication  ot 
matter  which  is  truthful,  they  will  not  relieve  from  liability  for 
injury  actually  inflicted  by  the  publication  of  matter  which  is 
untrue,  even  though  there  be  reasonable  grounds  to  believe  it 
to  be  true.  The  reasonable  belief  as  to  the  truth  of  the  matter 
may  relieve  from  liability  for  what  are  called  punitive  or  vindic- 
tive damages  in  a  suit,  but  not  for  actual  damage  done. 

There  are  occasions,  however,  when  it  may  be  justifiable  or 
even  obligatory  to  give  information  not  in  the  public  interest, 
but  in  private  interests ;  and  here  there  is  no  liability  if  the 
statements  are  made  in  good  faith  and  with  reasonable  ground 
to  believe  that  they  are  true.  Thus  an  agent  who  is  under 
obligation  to  communicate  to  his  principal  what  he  believes 
to  be  facts  as  affecting  such  person's  interests,  cannot  be  held 
accountable  to  third  persons  for  statements  made,  even  though 
they  are  false,  if  reasonably  believed  to  be  true,  and  such  as 
it  was  proper  to  make.  Likewise  in  the  family  relations,  com- 
munications between   husband  and  wife  or  parent  and  child 


308  Free  Speech  and  Press.  [§216 

cannot  be  complained  of  by  others  if,  when  made,  they  were 
believed  to  be  true,  and  such  as  it  was  proper  under  the  cir- 
cumstances to  make.  It  is  not  purposed  here  to  discuss  in 
full  the  law  of  libel,  but  only  the  extent  to  which  the  constitu- 
tional guaranties  of  freedom  of  speech  and  of  the  press  have 
been  applied  as  affecting  criminal  and  civil  liability. 

It  may  be  added  that  the  federal  statutes  prohibiting  the 
sending  of  obscene  matter,  lottery  advertisements,  etc.,  through 
the  mails  are  not  an  infringement  of  freedom  of  the  press  {^Ex 
parte  yackson  and  I?i  re  Rapier)  but  are  properly  within  the 
power  given  as  to  post-offices  and  post-roads.  (See  above, 
§  104.)  The  postal  service  is  not  a  necessary  function  of  the 
government,  but  is  assumed  and  established  by  Congress  for  the 
general  welfare,  and  Congress  may  designate  what  shall  be 
carried  in  the  mails  and  what  excluded.  The  action  of  the 
Post  Master  General  under  statutes  thus  regulating  the  postal 
service  is  not  subject  to  judicial  review.  Thus  it  is  held  that 
the  propriety  of  the  action  of  a  post  master  under  the  acts  of 
1890  and  1895  in  excluding  from  the  privilege  of  receiving 
mail  a  concern  engaged  in  fraudulent  business  cannot  be 
questioned  in  the  court  {Public  Clearifig  House  v.  Coyne). 


CHAPTER   XXXIX. 
RIGHTS   OF  ASSEMBLY   AND   PETITION. 
217.   References. 

J.  Story,  Constitution,  §§  1 893-1 895;  T.  M.  Cooley,  Constitutional 
Limitations,  *349;  J-  R-  Tucker,  Constitution,  671;  F.  Lieber,  Civil 
Liberty  and  Self- Government,  ch.  xii ;  T.  M.  Cooley,  Constitutional  Law, 
ch.  xiv,  §  3;  H.  C.  Black,  Constitutional  Law,  §  243;  United  States  v. 
Cruikshank  (1875,  9-  U.  S.  542;  McClain's  Cases,  31). 

218.  Peaceable  Assembly. 

It  may  be  true  that  the  prohibition  in  the  federal  constitution 
as  to  abridgment  of  "the  right  of  the  people  peaceably  to 
assemble  and  to  petition  the  government  for  a  redress  of  griev- 
ances "  (Amend.  I),  and  similar  prohibitions  in  the  state  con- 
stitutions, primarily  had  reference  to  assemblies  for  political 
purposes.  Nevertheless,  the  right  guaranteed  is  not  to  be  re- 
garded as  a  mere  political  privilege,  but  one  just  as  fundamental 
as  that  of  freedom  of  speech  and  the  press,  or  freedom  of  con- 
tracting, or  any  other  phase  of  liberty  recognized  by  our 
constitutional  system.  Assemblies  may  be  held,  not  only  for 
political  purposes,  but  also  for  religious,  social,  and  business 
purposes  ;  and  regardless  of  the  object,  if  it  be  lawful,  and  the 
method,  if  it  be  timely  and  orderly,  the  exercise  of  the  right  is 
to  be  recognized  and  protected.  The  government  may  prop- 
erly, in  the  preservation  of  peace  and  order,  suppress  or  dis- 
perse assemblies  made  for  an  unlawful  purpose  or  cause,  or 
which  by  reason  of  the  time,  place,  or  manner,  are  illegal, 
dangerous,  or  turbulent.  No  doubt  the  right  to  assemble  for 
political  purposes  in  connection  with  the  selection  of  presi- 
dential electors  or  congressmen,  or  for  the  purpose  of  petition- 
ing the  federal  government,  is  a  privilege  of  United  States 
citizenship,  but  the  general  right  to  assemble  for  lawful  pur- 

309 


3IO  Assembly  and  Petition.  [§  219 

poses,  and  in  proper  and  orderly  places  and  manner,  is  a  civil 
right,  to  be  protected  like  other  civil  rights  by  the  states.  It 
is  not  granted  by  constitutions,  but  by  them  is  recognized  and 
protected. 

219.  Right  to  Petition. 

So  far  as  the  clause  of  the  federal  constitution,  .last  above 
quoted,  relates  to  the  right  of  petition,  it  evidently  contemplates 
a  petition  by  many  persons  addressed  to  some  public  officer  or 
body. 

Petitioning  may  be  a  political  privilege  or  a  privilege  of  citi- 
zenship, but  it  is  broader  than  that  in  its  scope  and  was  undoubt- 
edly intended  as  one  of  the  guaranteed  civil  rights.  Those 
subject  to  law  ought  to  have  the  opportunity,  if  they  desire,  to 
avail  themselves  of  this  right,  in  order  to  urge  upon  legislative 
bodies  reformations  or  changes  in  the  law,  and  upon  the  execu- 
tive department  the  administration  of  the  law  in  such  a  way  as 
to  protect  personal  and  property  rights.  However,  as  no 
method  of  presenting  or  securing  the  consideration  of  such 
petitions  is  provided  for,  the  duty  to  receive  and  consider  is  to 
be  discharged  in  the  exercise  of  discretion  on  the  part  of  the 
legislative  body  or  executive  officer,  and  the  right  to  petition 
will  not  justify  violence  or  disorder  or  interference  with  the 
proceedings  of  any  duly  constituted  body  or  authority. 


CHAPTER   XL. 
RIGHT  TO   BEAR  ARMS;    QUARTERING   OF   SOLDIERS. 
220.    References. 

J.  Story,  Constitution,  §§  1 896-1 900 ;  T.  M.  Cooley,  Constitutional 
Limitations^  *  35°  >  J-  R-  Tucker,  Constitution,  671,  672  ;  J.  N.  Pomeroy, 
Constitutional  Law,  §§  239,  240 ;  F.  Lieber,  Civil  Liberty  and  Self-Govern- 
ntent,  ch.  xi ;  T.  M.  Cooley,  Constitutiojial  Law,  ch.  xiii,  §  2,  and  ch.  xiv,  §  4  ; 
H.  C.  Black,  Cojistitutional  Law,  §§  203,  218;  Ex  parte  Cruikshank 
(1875,  92  U.  S.  542 ;  McClain's  Cases,  31). 

221.    Keeping  and  Bearing  Arms. 

The  provision  of  the  federal  constitution  that  "  A  well-regu- 
lated militia  being  necessary  to  the  security  of  a  free  state,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed "  (Amend.  II),  and  like  provisions  in  state  constitu- 
tions are  evidently  intended  to  guarantee  the  right  of  the 
people  to  form  military  organizations  under  lawful  authority 
for  a  proper  purpose.  The  federal  guaranty  would  prevent 
any  attempt  on  the  part  of  Congress  to  render  illegal  the  organi- 
zation and  discipline  of  a  state  militia,  but  such  interference 
would  be  unconstitutional  without  this  guaranty,  for  (see  above, 
§  no)  the  right  of  the  state  to  maintain  an  organized  militia 
is  elsewhere  recognized.  As  an  exercise  of  a  civil  right,  the 
formation  of  military  companies  or  bodies  must  depend  for  its 
lawfulness  upon  the  state  constitution  and  laws,  and  must  be 
exercised  in  accordance  with  the  law.  Therefore,  the  state  may 
prohibit  the  gathering  of  armed  men  for  an  unlawful  purpose 
or  in  a  manner  likely  to  result  in  violation  of  law  or  in  disorder 
and  riot. 

The  state  may  also  prohibit- the  carrying  of  arms  by  private 
individuals  as  an  act  imperilling  the  public  peace  and  safety. 

3ii 


312  Arms  and  Quarters.  [§  222 

In  many  slates  there  are  statutes  making  it  a  crime  to  carry 
concealed  weapons,  and  such  statutes  are  not  regarded  as 
unconstitutional. 

222.    The  Quartering  of  Troops. 

One  of  the  grievances  of  the  colonies  as  indicated  in  the 
Declaration  of  Independence  was  that  the  English  government 
kept  among  the  people  in  times  of  peace  standing  armies  with- 
out the  consent  of  their  legislative  bodies,  and  quartered  upon 
them  and  required  them  to  maintain  bodies  of  armed  troops ; 
and  the  policy  indicated  by  the  federal  and  state  constitutions 
is  that  standing  armies  for  the  purpose  of  maintaining  internal 
peace  and  the  enforcement  of  law  should  be  avoided.  Accord- 
ingly, the  organization  of  the  militia  in  the  states  is  provided 
for,  and  the  federal  government  is  authorized  to  call  out  the 
state  militia  for  the  protection  of  the  United  States  government 
and  the  enforcement  of  its  laws  (see  above,  §  in).  Neverthe- 
less, the  United  States  government  is  authorized  to  maintain 
standing  armies  and  to  use  the  regular  troops  whenever  the 
employment  of  military  force  is  justified.  The  prohibition 
against  the  quartering  of  troops  referred  to  in  the  federal 
constitution  (Amend.  II)  and  in  the  state  constitutions,  is 
intended  to  prevent,  in  time  of  peace,  the  imposition  of  the 
support  of  soldiers  on  private  persons  or  of  their  maintenance 
by  such  persons  in  time  of  war,  and  also  to  prevent  the  in- 
trusion of  soldiers  upon  the  private  premises  of  individuals.  The 
common-law  notion  that  every  man's  house  is  his  castle  and 
that  he  shall  not  be  compelled  to  allow  any  person  to  come 
upon  his  premises  except  with  his  consent,  save  the  officers  of 
the  law  in  the  execution  of  their  regular  duties,  is  undoubtedly 
recognized  by  such  constitutional  provision. 


CHAPTER   XLI. 

SEARCHES   AND    SEIZURES. 

223.    References. 

Joseph  Story,  Constitution,  §§  1901,  1902;  T.  M.  Cooley,  Constitutional 
Limitations,  *  299-308  ;  J.  R.  Tucker,  Constitution,  672  ;  F.  Lieber,  Civil 
Liberty  and  Self-Government,  ch.  vi ;  J.  N.  Pomeroy,  Constitutional  Law^ 
§  241  ;  T.  M.  Cooley,  Constitutional  Law,  ch.  xiii,  §  2  ;  H.  C.  Black,  Con- 
stitutional Law,  §§  216,  217  ;  Boyd  v.  United  States  (1886,  116  U.  S.  616; 
McClain's  Cases,  885). 

224.    Search  and  Seizure  ^vithout  Warrant. 

The  fundamental  principles  of  civil  liberty  and  the  enjoyment 
of  property  forbid  that  one's  person  or  premises  be  searched 
or  that  his  person  or  property  be  seized  without  lawful  authority ; 
and  without  any  express  constitutional  guaranty^  immunity 
from  such  unlawful  acts  would  be  fully  recognized.  But  the 
people  of  England  and  of  the  colonies  had  experienced  un- 
justifiable invasion  of  this  right  by  means  of  searches  and 
seizures  not  authorized  by  law  and  in  the  exercise  of  a  tyrannical 
authority,  and  it  was  natural  that  express  guaranties  against 
such  tyrannical  acts  should  be  inserted  in  the  state  constitutions 
and  in  the  federal  constitution.  The  provision  of  the  latter  is 
as  follows  :  '*  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects  against  unreasonable  searches 
and  seizures  shall  not  be  violated,  and  no  warrants  shall  issue, 
but  upon  probable  cause,  supported  by  oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched  and  the  persons 
or  things  to  be  seized"  (Amend.  IV).  The  notion  that  every 
man's  house  is  his  castle,  to  be  invaded  without  his  consent  only 
under  lawful  authority,  which  has  been  already  referred  to  in 
the  preceding  chapter,  is  further  recognized  here.  There  may 
be  proper  occasion  for  the  invasion  of  private  premises  in  the 

313 


314  Searches  and  Seizures.  [§  225 

execution  of  the  law,  but  the  guaranty  is  as  against  such  acts 
by  public  authority  without  the  sanction  of  law.  Such  invasion 
on  the  part  of  public  officers  may  be  lawful  without  warrant  or 
other  process  for  the  purpose  of  arresting  a  criminal  or  in  the 
protection  of  the  public  health  or  safety,  but  the  officer  thus 
acting  on  his  own  responsibiUty  and  judgment  is  subject  to  the 
risk  of  being  held  accountable  for  trespass  if  in  the  judgment 
of  the  court  the  circumstances  did  not  justify  his  action.  He 
cannot  safely  proceed  upon  mere  suspicion  or  upon  his  own 
whim  or  caprice.  Subject  to  the  same  hability  a  private  person 
may  sometimes  be  justified  in  breaking  into  private  premises 
to  prevent  a  crime  or  arrest  a  criminal. 

The  sanctity  of  the  person  and  the  dwelling,  which  the 
common  law  fully  recognizes,  extends  also  to  private  books, 
correspondence,  and  other  things  in  which  the  public  has  no 
legitimate  concern. 

225.    Search  Warrants. 

Regular  proceedings  are  recognized  in  all  the  states  in  pur- 
suance of  which  the  officers  of  the  law  may  be  authorized  by  a 
warrant  duly  issued,  to  enter  private  premises  and  search  for 
property  or  the  evidence  of  crime,  but  a  search  warrant  will  be 
issued  only  after  some  form  of  proof  to  a  magistrate  or  other 
judicial  officer  that  there  is  just  occasion  for  such  search  and 
seizure ;  and  the  proofs  and  warrant  issued  in  pursuance  of  it, 
must  indicate  the  object  of  the  search,  which  must  be  an  object 
recognized  by  law,  and  the  premises  to  be  searched  must  be 
described  with  some  particularity.  A  warrant  not  thus  describ- 
ing the  premises  to  be  searched,  and  the  object,  is  called  a 
general  warrant,  and  under  our  system  of  government  is  un- 
authorized. The  officers  of  the  law  may  also  be  authorized  by 
warrant  for  the  arrest  of  a  person  designated  therein  to  enter 
private  premises  for  the  purpose  of  making  such  arrest,  and  in 
making  an  arrest  for  the  commission  of  a  crime  they  may  seize 
property  procured  by  means  of  the  crime  charged,  or  weapons 
which  have  been  used  in  the  commission  of  the  crime,  or  which 
tend  to  furnish  evidence  of  its  commission. 


CHAPTER   XLII. 

GUARANTIES   AS   TO   PROSECUTIONS    FOR   CRIME. 

226.    References. 

J.  Story,  Constitution,  §§  1778-1794;  T.  M.  Cooley,  Constitutional  Limi- 
tations, **  309-348;  J.  N.  Pomeroy,  Constitutional  Law,  §§  242-244;  F. 
IJeber,  Civil  Liberty  and  Self-Government,  chs.  xix,  xx,  and  app.  iii ; 
T.  M.  Cooley,  Constitutional  Law,  ch.  xv,  i;§  3-6;  H.  C.  Black,  Constitu- 
tional Law,  ch.xx;  J.  C.  Hnrd,  Habeas  Corpus ;  W.  Blackstone,  Commenta- 
ries, III,  134-138;  Hurtado  v.  People  of  California  (1884,  no  U.  S.  516; 
Thayer's  Cases,  616;  McClain's  Cases,  905);  Mackin  v.  United  States, 
(1885,  117  U.  S.  417,  McClain's  Cases,  985);  Kring  v.  Missouri  (1882, 
107  U.  S.  221  ;  McClain's  Cases,  983;  Thayer's  Cases,  1458)  ;  Brown  v. 
Walker  (1896,  161  U.  S.  591  ;  McClain's  Cases,  990)  ;  Mattox  v.  United 
States  (1895,  156  U.  S.  237  ;  McClain's  Cases,  995) ;  In  re  Kemmler  (i^go, 
136  U.  S.  436) ;  TarbWs  Case  (1871,  13  Wallace,  397;  McClain's  Cases, 
43;  Thayer's  Cases,  2299)  ;  Iti  re  Neagle  (18S9,  135  U.  S.  i  ;  McClain's 
Cases,  65  ;  Thayer's  Cases,  335)  ;  Whitten  v.  Tomlinson  (1895,  ^^  U.  S. 
231;  McClain's  Cases,  777);  Ex  parte  Milligan  (1867,  4  Wallace,  2; 
Thayer's  Cases,  2376) ;  Ex  parte  Merrymait  (1861,  Taney's  Reports,  246; 
Thayer's  Cases,  2361,  and  note,  2374)  ;  Hallinger  v.  Davis  (1892,  146 
U.  S.  314  ;  McClain's  Cases,  987  ) ;  Harris  v.  People  (1889,  128  111.  585; 
McClain's  Cases,  989). 

227.    General  Guaranties  as  to  Prosecutions. 

Restrictions  on  the  state  and  federal  government  in  the 
exercise  of  the  power  to  define  and  provide  for  the  punish- 
ment of  crime  have  already  been  briefly  discussed  (see  above, 
ch.  x)  and  it  has  been  suggested  that  on  this  subject  there 
are  certain  specific  limitations  in  the  federal  constitution 
on  the  power  of  states  as  well  as  on  the  power  of  the  federal 
government.  Indeed  those  provisions  in  the  federal  constitu- 
tion are  generally  included  in  the  state  constitutions,  so  that  the 
whole  subject  may  be  discussed  with  reference  to  the  provisions 
of  the  federal  constitution,  bearing  in  mind,  however,  the  rule 
of  construction  that  general  limitations  in  the  federal  constitu- 

315 


316  Prosecutions  for  Crime.  [§  228 

tion  apply  only  to  the  federal  government,  and  that  limitations 
intended  as  restrictions  on  state  power  make  specific  reference 
to  the  states. 

228.    Due  Process  of  La^v. 

The  most  important  general  limitation  in  both  state  and 
federal  constitutions,  applicable  in  criminal  prosecutions  as  well 
as  in  civil  suits,  is  the  guaranty  found  in  Amendment  V,  and 
in  similar  provisions  in  state  constitutions,  against  depriving 
"  any  person  of  life,  liberty,  or  property  without  due  process  of 
law."  This  restriction  is  specifically  imposed  on  the  states  in 
Amendment  XIV  (see  below,  ch.  xliv).  It  is  difficult  to 
describe  in  a  very  definite  way  the  essentials  of  due  process  of 
law  in  criminal  cases.  It  was  no  doubt  intended  by  the  use 
of  this  language  to  preserve  the  common-law  methods  of  pro- 
cedure for  the  punishment  of  crimes,  which  involve  usually 
some  form  of  accusation  on  oath  before  a  magistrate ;  the 
issuance  by  such  magistrate  of  a  warrant  for  the  arrest  of  the 
accused ;  a  preliminary  investigation  by  the  magistrate  to  de- 
termine whether  the  accused  shall  be  held  under  bail  or  other- 
wise to  appear  before  the  grand  jury ;  the  hearing  of  evidence 
by  the  grand  jury  to  determine  whether  there  is  such  reasonable 
ground  to  believe  the  accused  to  be  guilty  as  to  justify  the 
finding  of  an  indictment  against  him ;  trial  by  jury  on  the 
charge  made  in  the  indictment;  sentence  by  the  court  to  a 
specified  punishment  on  a  verdict  of  guilty ;  and  execution  of 
the  sentence  imposed  by  the  court. 

These  are  the  usual  steps  as  to  crimes  of  a  graver  nature 
designated  as  felonies ;  but  the  preliminary  proceedings  with 
relation  to  the  issuance  of  a  warrant  of  arrest  are  not  regarded 
as  essential  steps  and  may  be  omitted,  for  the  charge  can  be 
made  directly  to  the  grand  jury,  or  the  grand  jury  can  investi- 
gate on  its  own  motion,  and  a  warrant  of  arrest  can  be  issued 
in  the  first  instance  by  the  court  to  which  the  indictment  is 
returned.  The  essential  steps,  therefore,  as  to  felonies  are,  so 
far  as  the  protection  of  the  rights  of  the  accused  may  be 
conceraed,  indictment   by  grand  jury,  trial   by  iury,  and  sen- 


§  229]         Presentment  or  Indictment.  317 

tence  on  verdict  of  guilty.  But  in  case  of  crimes  involving 
a  lesser  degree  of  criminality,  accusation  by  information  may 
be  substituted  for  indictment  by  grand  jury,  and  indeed  some 
petty  crimes  can  be  punished  on  trial  before  a  magistrate  with- 
out a  jury.  Therefore,  it  cannot  be  said  that  in  all  criminal 
cases  indictment  and  jury  trial  are  essential  to  due  process  of 
law. 

It  may,  however,  safely  be  stated  that  the  accused  in  any 
criminal  proceeding  is  entitled  to  know  what  acts  are  charged 
as  constituting  the  crime  for  which  he  is  put  on  trial  and  to  an 
investigation  of  these  facts  on  evidence  received  in  a  judicial 
tribunal  governed  by  the  rules  of  evidence  generally  recognized 
by  courts,  and  to  be  convicted  only  when  the  evidence  estab- 
lishes his  guilt  beyond  a  reasonable  doubt.  These,  therefore, 
are  the  essential  features  of  due  process  of  law  in  criminal 
prosecutions.  Certain  specific  restrictions  with  reference  to 
each  of  these  steps  in  the  procedure  must  now  be  separately 
considered. 

229.     Presentment  or  Indictment. 

The  first  guaranty  in  Amendment  V  to  the  federal  constitu- 
tion is,  "  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime  unless  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces  or  in  the  militia  when  in  actual  service  in  time  of  war  or 
public  danger."  A  distinction  is  here  recognized  between 
"presentment"  and  "indictment"  which  is  of  no  practical 
value.  Either  must  be  the  result  of  action  by  a  grand  jury. 
A  presentment  is  made  by  a  grand  jury  on  its  own  motion, 
based  on  an  investigation  had  at  the  instance  of  the  members 
themselves  and  not  upon  charges  submitted  by  a  prosecuting 
officer,  while  an  indictment  is  drawn  by  a  prosecuting  officer 
and  approved  by  the  grand  jury  after  hearing  the  evidence 
tending  to  show  that  the  person  charged  is  guilty  of  the  crime 
named  and  described  in  the  indictment ;  but  the  effect  in  each 
case  is  the  same  and  the  distinction  need  not  be  further 
referred  to. 


3 1 8  Prosecutions  for  Crime.  [§  230 

The  grand  jury  at  common  law  is  a  body  of  persons  qualified 
to  act  in  that  capacity  and  selected  in  accordance  with  some 
established  procedure  and  sworn  to  discharge  fairly  and  im- 
partially the  duty  of  investigating  crimes  of  which  they  have 
knowledge  or  which  are  brought  to  their  attention  in  proper 
form,  and  to  return  indictments  against  those  whom  they  have 
reasonable  ground  to  believe  to  be  guilty  of  such  crimes.  At 
common  law  a  grand  jury  may  consist  of  not  more  than  twenty- 
three  quahfied  persons,  twelve  of  whom  must  concur  in  finding 
an  indictment.  In  every  case,  therefore,  in  which  indictment  is 
required  it  is  meant,  unless  otherwise  provided,  that  such  an 
indictment  must  have  been  concurred  in  by  twelve  grand 
jurors.  In  states  having  constitutional  provisions  in  this  respect 
similar  to  that  found  in  Amendment  V,  the  same  rule  is  ap- 
plicable ;  but  by  express  constitutional  provision  a  grand  jury 
of  less  than  twelve  may  be  authorized,  for  there  is  no  restriction 
in  the  federal  constitution  on  the  action  of  states  in  this  respect. 
Indeed  it  is  now  provided  in  some  state  constitutions  that  the 
accused  may  be  put  on  trial  without  indictment,  some  other 
form  of  accusation  being  substituted,  and  this  is  no  violation  of 
the  provisions  of  the  federal  constitution.  In  other  words, 
indictment  by  grand  jury  is  not  essential  to  due  process  of  law, 
and  is  not  required  in  the  state  courts  unless  either  expressly  or 
by  implication  the  state  constitution  so  provides  {^Hurtado  v. 
California) . 

230.    Capital  or  othenvise  Infamous  Crimes. 

In  states  where  by  constitutional  provision  indictment  is  still 
essential,  it  is  usually  required  in  cases  of  treason  and  felony ; 
but  Amendment  V  uses  somewhat  different  language  and  speci- 
fies the  crimes  triable  only  on  indictment  in  the  federal  courts 
as  those  which  are  capital  or  otherwise  infamous.  Capital 
crimes  are  those  for  which  punishment  by  death  may  be  im- 
posed ;  and  infamous  crimes  are  those  subjecting  the  guilty 
person  to  an  infamous  punishment.  The  infamy  which  is  re- 
ferred to  in  this  description  is  infamy  in  the  punishment  which 
may  be  imposed,  and  not  infamy  in  the  nature  of  the  crime  it- 


§  232]  Twice  in  Jeopardy  319 

self.  An  infamous  punishment  not  capital  is  punishment  by 
imprisonment  in  a  penitentiary,  as  distinct  from  imprisonment 
in  a  county  jail  {Mack in  v.  United  States). 

Crimes  which  are  not  capital  or  otherwise  infamous  may  be 
prosecuted  in  the  federal  court  on  indictment,  but  in  such  cases 
indictment  is  not  essential  under  the  constitutional  provision. 
There  must,  however,  be  some  recognized  form  of  accusation, 
and  the  usual  form  in  such  cases  is  called  an  information, 
which  is  a  complaint  made  under  oath  and  presented  by  the 
prosecuting  officer  to  the  court,  charging  the  crime  in  substan- 
tially the  same  manner  which  is  usual  in  an  indictment. 

231.    Courts-Martial. 

The  exception  found  in  Amendment  V,  with  reference  to  cases 
arising  in  the  land  and  naval  forces  or  in  the  militia,  applies  to 
proceedings  in  courts-martial  for  violation  of  the  military  law. 
(See  above,  §  114.)  Such  courts  proceed  in  accordance  with 
the  provisions  made  by  Congress  under  the  authority  to  estab- 
lish rules  for  the  government  and  regulation  of  the  land  and 
naval  forces  and  for  governing  such  part  of  the  militia  as  may 
be  employed  in  the  services  of  the  United  States  (Const.  Art. 
I,  §  8,  IF  1[  14,  16).  The  ordinary  constitutional  limitations  are 
not  applicable  to  such  courts. 

232.    Twice  in  Jeopardy. 

The  clause  found  in  Amendment  V  of  the  federal  constitution 
and  in  the  constitutions  of  the  various  states,  that  no  person  shall 
be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of 
life  or  limb,  is  merely  a  partial  statement  of  a  common-law  prin- 
ciple that  no  one  shall  be  twice  tried  for  the  same  offence.  As 
found  in  the  federal  constitution  the  clause  is  of  extremely 
limited  application,  and  strictly  interpreted  relates  only  to  crimes 
which  may  be  punished  by  death,  for  maiming  as  a  form  of  pun- 
ishment has  never  been  recognized  in  this  country.  But  simi- 
lar provisions  in  the  state  constitutions  go  to  the  full  extent  of 
prohibiting  a  second  trial  for  an  offence  for  which  the  same 
person  has  previously  been  put  on  trial. 


320  Prosecutions  for  Crime.  [§  233 

The  usual  application  of  this  rule  is  in  cases  where  the  ac- 
cused has  been  acquitted  by  a  jury  ;  and  such  acquittal  is  con- 
clusive, not  only  as  to  the  crime  charged,  but  as  to  any  other 
crime  involving  the  same  acts  which  were  depended  upon  or 
sought  to  be  established  in  the  first  trial  for  the  purpose  of  se- 
curing a  conviction.  No  matter  how  unwarrantable  under  the 
evidence  may  be  the  action  of  the  jury,  and  no  matter  how 
erroneous  may  have  been  the  procedure  in  the  court,  the  ver- 
dict of  the  jury  acquitting  the  accused  is  final.  But  if  the  ac- 
cused is  convicted  and  the  conviction  is  set  aside  for  some 
error  of  the  court  or  misconduct  of  the  jury,  the  accused  who 
has  procured  the  hostile  verdict  to  be  thus  set  aside  may  be 
again  put  on  trial,  although,  as  held  by  some  courts,  he  cannot  be 
again  tried  for  any  higher  crime  or  higher  degree  of  crime 
charged  than  that  for  which  he  was  convicted,  the  conviction 
of  the  lesser  crime  or  lower  degree  being  deemed  an  acquittal 
of  any  higher  crime  or  higher  degree  of  crime  {Krifig  v. 
Missouri).  The  constitutional  provision  also  prevents  a  second 
trial  for  a  crime  which  involves  any  criminal  act  for  which  the 
accused  has  been  convicted  on  a  previous  trial. 

It  is  not  practicable  to  discuss  in  full  the  doctrine  of  second 
jeopardy  as  applied  to  cases  where  a  prosecution  has  been  duly 
commenced,  and  for  some  reason  has  never  proceeded  to  the 
verdict  of  a  jury.  It  is  sufficient  to  say  that  if  the  defendant 
by  escaping  from  custody  or  otherwise  has  prevented  the  trial 
of  the  case,  or  if  by  reason  of  sickness  of  the  judge  or  inability 
of  the  jury  to  agree  no  verdict  has  been  reached,  the  accused 
may  be  again  put  on  trial. 

233.    Self-Crimination. 

The  provision  in  Amendment  V  that  no  person  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself, 
which  is  found  also  in  many,  though  not  all,  of  the  state  consti- 
tutions, is  an  announcement  of  a  general  rule  of  evidence  long 
recognized  in  common-law  courts  as  applicable  in  civil  as  well 
as  criminal  cases.  The  object  of  this  rule  of  evidence  is  to 
protect  the  witness  against  being  compelled  in  any  judicial  pro- 


§  233]  Self-Crimination.  321 

ceeding  to  disclose  facts  which  would  tend  to  subject  him  to  a 
criminal  prosecution.  Under  the  civil-law  system  as  adminis- 
tered in  France  and  some  other  European  countries,  one  who 
is  put  on  trial  for  a  crime  is  subjected  to  an  inquiry  into  his 
whole  life  and  conduct,  without  regard  to  its  relevancy  to  the 
particular  crime  with  which  he  is  charged ;  and  in  such  coun- 
tries physical  torture  was  formerly  permitted  for  the  purpose  of 
securing  confessions  of  guilt.  But  such  proceedings  were  not 
recognized  as  justifiable  by  the  common  law  as  it  prevailed  in 
England  at  the  time  that  the  American  colonies  became  inde- 
pendent, and  are  not  permitted  in  any  of  the  states  of  the 
Union.  Some  of  the  rules  resulting  from  the  recognition  of 
the  principle  that  a  witness  cannot  be  required  to  give  self- 
criminating  testimony  are  the  following :  Admissions  of  guilt 
made  outside  of  court  cannot  be  proven  against  one  accused  of 
crime  unless  they  are  voluntarily  made.  The  accused  cannot 
be  required  to  testify  in  a  criminal  case.  In  no  case  either 
civil  or  criminal  can  a  witness  be  compelled  to  give  testimony 
tending  to  show  that  he  has  been  guilty  of  a  crime,  nor  to  pro- 
duce books  and  papers  having  such  tendency. 

As  to  some  crimes  it  is  found  so  difficult  to  secure  the  evi- 
dence of  persons  not  implicated  that  statutes  have  been  passed 
in  various  states  providing  that  as  to  certain  classes  of  crimes 
persons  implicated  therein  may  be  required  to  testify  against 
others,  with  the  provision  that  their  testimony  shall  not  after- 
wards be  used  against  themselves  in  prosecutions  for  the  same 
crime  ;  but  to  these  statutes  it  has  been  objected  that  they  sub- 
ject the  witness  to  the  ignominy  of  disclosing  his  criminal  con- 
duct, and  to  the  danger  that  after  his  connection  with  the  crime 
has  been  discovered  his  guilt  thereof  may  be  proven  by  other 
evidence  to  which  his  enforced  disclosure  has  furnished  a  clue ; 
and  it  is  thought  that  such  statutes  do  not  adequately  protect 
the  person  required  to  testify  unless  it  is  provided  further  that 
he  shall  not  subsequently  be  held  accountable  in  a  criminal 
prosecution  for  any  crime  committed  by  him  in  any  way  con- 
nected with  the  transaction  with  reference  to  which  he  is  com- 
pelled to  testify  {Brown  v.  Walker). 


322  Prosecutions  for  Crime.  [§  235 

234.    Speedy  and  Public  Trial. 

State  constitutions  usually  contain  a  provision  similar  to  that 
found  in  the  federal  constitution,  that  "  In  all  criminal  prosecu- 
tions the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial "  (Amend.  VI).  But  these  provisions  are  rather  directory 
than  mandatory  in  character.  The  accused  cannot  insist  on  a 
trial  otherwise  than  in  accordance  with  the  usual  and  recog- 
nized method  of  procedure  in  a  court  of  justice,  and  it  may 
result  that  even  against  his  will  the  trial  is  postponed  until  his 
guilt  can  be  properly  investigated  and  the  evidence  against  him 
secured.  Statutory  provision  is  usually  made,  however,  for  giv- 
ing preference  to  criminal  over  civil  cases,  so  that  the  trial  of 
criminal  prosecutions  may  be  had  as  soon  as  practicable,  and 
it  is  not  uncommon  to  provide  that  one  accused  of  crime  shall 
be  released  after  the  second  term  of  court  at  which  he  might 
have  been  tried  has  passed  without  his  case  being  reached,  unless 
his  own  fault  or  request  or  some  unusual  emergency  has  brought 
about  a  further  postponement. 

By  public  trial  is  meant  a  trial  in  open  court  and  this  is  the 
usual  method  of  procedure  in  all  American  judicial  tribunals. 
The  requirement  of  a  public  trial  does  not,  however,  pre- 
vent the  exclusion  from  the  court  room  of  witnesses,  for  the 
purpose  of  preventing  them  from  hearing  the  testimony  given 
by  other  witnesses  so  as  to  be  able  to  conform  their  own  testi- 
mony to  that  of  others  whom  they  may  be  called  upon  to  cor- 
roborate or  controvert ;  nor  does  it  prevent  the  Hke  exclusion 
of  children,  or  even  the  general  public  who  have  no  direct  inter- 
est in  the  case,  in  prosecutions  which  are  of  such  character 
that  their  presence  might  tend  to  the  corruption  of  their  morals 
or  the  morals  of  the  community. 

235.    Trial  by  Jury  ;  Venue. 

It  is  further  provided  (Amend.  VI)  that  the  trial  in  criminal 
prosecutions  is  to  be  *'  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law."     This 


§  235]  Trial  by  Jury.  323 

is  analogous  to  a  rule  of  the  common  law  formerly  recognized 
in  England  requiring  that  in  criminal  prosecutions  the  jury  shall 
consist  of  persons  summoned  from  the  vicinity  where  the 
crime  was  committed  ;  ^  but  such  a  rule  no  longer  prevails  in 
the  states,  and  it  is  usually  left  to  be  determined  by  statute  in 
what  county  of  the  state  a  criminal  trial  shall  be  held.  It  is 
generally  required  that,  save  where  a  crime  is  continuous  in  its 
nature  and  has  been  partly  committed  in  two  or  more  counties, 
or  has  been  commenced  in  one  county  and  the  final  result 
accomplished  in  another,  the  trial  must  be  in  the  county  of  the 
commission  of  the  crime.  It  is  no  longer  regarded  as  desirable 
or  even  expedient  that  persons  familiar  with  the  circumstances 
of  the  crime  shall  serve  as  jurors  for  the  trial  of  the  accused. 

But  there  is  a  paragraph  in  the  federal  constitution  as  first 
adopted  requiring  criminal  trials  in  the  federal  courts  to  be  by 
jury,  in  this  language  :  "  The  trial  of  all  crimes,  except  in  cases 
of  impeachment,  shall  be  by  jury ;  and  such  trial  shall  be  held 
in  the  state  where  the  said  crimes  shall  have  been  committed ; 
but  when  not  committed  within  any  state  the  trial  shall  be  at 
such  place  or  places  as  the  Congress  may  by  law  have  directed  " 
(Art.  Ill,  §  2,  H  3).  As  no  federal  district  includes  two  states 
or  parts  of  two  states,  this  provision  is  comphed  with  if  the 
crime  is  tried  by  the  proper  federal  court  for  the  district  in 
which  the  crime  is  committed ;  and  Congress  has  made  direc- 
tion as  to  crimes  against  the  United  States  not  committed  in 
any  state  (as,  for  instance,  on  the  high  seas)  by  providing  that 
if  the  crime  is  committed  outside  the  limits  of  any  of  the  dis- 
tricts, the  trial  shall  be  had  in  the  district  in  which  the  accused 
is  arrested,  or  if  arrested  outside  of  any  of  the  districts,  then  in 

1  Reference  is  no  doubt  made  to  this  rule  of  the  common  law  in  the 
complaint  embodied  in  the  Declaration  of  Independence  that  the  king 
had  deprived  the  colonists  of  the  benefit  of  jury  trial  and  transported 
them  beyond  the  seas  for  trial  for  offences  ;  but  it  is  more  distinctly 
referred  to  in  the  "  Declaration  of  Rights  "  adopted  by  the  First  Con- 
tinental Congress  in  1774  in  which  this  language  is  used:  "The  respec- 
tive colonies  are  entitled  to  the  common  law  of  England  and  more 
especially  to  the  great  and  inestimable  privilege  of  being  tried  by  their 
peers  of  the  vicinage,  according  to  the  course  of  that  law." 


324  Prosecutions  for  Crime.  [§  237 

the  district  into  which  he  is  first  brought  after  being  arrested. 
The  manifest  purpose  is  to  avoid  the  possibihty  that  the  prose- 
cuting officers  shall  select  for  the  trial  of  one  accused  of  crime 
some  particular  court  or  district  in  which  they  shall  have  a 
better  chance  of  securing  conviction  than  in  some  other,  or 
that  they  shall  unnecessarily  inconvenience  or  oppress  the 
accused  by  subjecting  him  to  trial  at  a  great  distance  from  the 
place  where  the  crime  was  committed,  thus  making  it  more 
difficult  for  him  to  secure  the  attendance  of  witnesses. 

236.  Right  to  be  Informed  of  the  Accusation. 

It  is  of  the  very  essence  of  due  process  of  law  in  criminal 
cases  that  the  accused  "  be  informed  of  the  nature  and  cause 
of  the  accusation,"  as  required  by  Amendment  VI,  and  by 
similar  provisions  in  state  constitutions.  If  the  crime  is  one 
triable  only  on  indictment  by  a  grand  jury,  the  indictment  must 
state  in  accurate  legal  terms .  the  facts  showing  the  accused  to 
be  guilty  of  the  crime  charged,  and  he  can  only  be  convicted 
on  proof  of  the  facts  thus  alleged.  The  purpose  of  the 
constitutional  requirement  is  that  the  accused  may  have  full 
opportunity  to  defend  against  the  charge  made,  by  introducing 
evidence  tending  to  meet  that  introduced  by  the  prosecution 
to  establish  his  guilt  on  such  charge.  This  opportunity  would 
not  be  afforded  him  if  he  could  be  convicted  on  evidence  tend- 
ing to  show  the  commission  of  a  different  crime,  or  the  same 
crime  in  a  different  manner  than  that  stated  in  the  indictment. 
In  prosecution  by  information  instead  of  indictment  there  must 
be  the  same  definiteness  in  the  information  as  is  required  in 
case  of  indictment. 

237.  Right  to  be  Confronted  with  "Witnesses. 

The  requirement  of  Amendment  VI  that  the  accused  in  a 
criminal  prosecution  must  be  confronted  with  the  witnesses 
against  him  is  simply  a  statement  of  a  rule  of  common-law  pro- 
cedure in  prosecutions  for  crime  which  is  generally  recognized 
in  the  constitutions  of  the  states.    The  purpose  of  such  require- 


§  237]         Confronted  with  Witnesses.  325 

ment  is  to  enable  the  accused  to  subject  the  witnesses  against 
him  to  the  tests  of  credibility  afforded  by  cross-examination  and 
impeaching  evidence,  and  to  have  the  jury  pass  upon  the  weight 
of  their  testimony  in  view  of  such  tests  and  their  general  con- 
duct and  appearance  while  testifying.  Experience  has  shown 
that  these  are  valuable  means  for  arriving  at  the  truth.  In  civil 
cases  testimony  may  be  authorized  to  be  taken  by  deposition 
to  be  read  in  evidence  without  the  presence  of  the  witness,  the 
deposition  having  been  given  and  sworn  to  before  some  officer 
authorized  to  administer  oaths,  but  the  constitutional  provision 
that  the  accused  in  a  criminal  prosecution  must  be  confronted 
by  the  witnesses  against  him  prevents  the  testimony  of  witnesses 
for  the  prosecution  being  introduced  by  depositions.  The 
accused  may,  if  he  sees  fit,  waive  the  constitutional  requirement 
and  permit  testimony  to  be  given  by  deposition,  and  he  may 
introduce  such  testimony  on  his  own  behalf,  if  authorized  by 
statutory  provisions.  It  may  result  from  this  constitutional 
requirement  that  the  prosecution  will  be  unable  to  convict,  if 
some  essential  fact  in  connection  with  the  commission  of  the 
crime  can  only  be  proven  by  witnesses  who  are  outside  of  the 
state,  as  the  state  cannot  compel  the  attendance  of  witnesses 
from  beyond  its  limits. 

There  are  at  least  two  apparent  exceptions  to  the  rule  requir- 
ing the  defendant  to  be  confronted  by  the  witnesses  against 
him,  which  are  made  by  the  courts  in  the  practical  administra- 
tion of  justice,  (i)  In  a  prosecution  for  criminal  homicide  the 
dying  declarations  of  the  person  killed  with  reference  to  the 
circumstances  of  the  homicide  and  the  connection  of  the  accused 
therewith  may  be  shown.  The  reason  usually  given  for  this 
exception  is  that  one  who  believes  himself  to  be  about  to  die 
is  as  likely  to  tell  the  truth  as  though  he  were  under  oath  and 
subjected  to  cross-examination,  and  the  exception  as  to  dying 
declarations  is  accordingly  limited  to  statements  made  by  the 
injured  person  under  the  sense  of  impending  death  which  in 
fact  follows  soon  after  the  statements  are  made.  (2)  Another 
apparent  exception  is  found  in  the  admission  on  a  second  trial 
of  the  testimony  given  against  the  accused  on  a  former  trial  by 


326 


Prosecutions  for  Crime.  [§  238 


a  witness  subsequently  deceased  ;  that  is,  if  the  accused  on  one 
trial  is  confronted  by  a  witness  duly  sworn  and  properly  cross- 
examined,  and  by  reason  of  the  failure  of  the  jury  to  agree  or 
in  case  a  verdict  of  guilty  has  been  set  aside  and  a  new  trial 
granted,  the  accused  has  again  been  put  on  trial  under  the 
same  indictment  and  the  witness  testifying  on  the  former  trial 
is  dead  (or  perhaps  if  he  has  gone  beyond  the  reach  of  a  sub- 
poena) those  who  heard  his  evidence  on  the  former  trial  may 
testify  what  it  was  and  thus  make  it  available  against  the  accused. 
In  such  case  the  accused  has  in  fact  once  been  confronted  with 
the  witness  who  has  been  required  to  testify  under  oath  and 
been  subjected  to  a  cross-examination,  and  there  is  no  good 
reason  why  the  prosecution  should  be  deprived  of  the  benefit 
of  such  testimony  by  the  accident  of  death  or  by  other  casualty 
not  due  to  any  fault  or  negligence  on  its  part  {Mattox  v. 
UfiiUd  States). 

238.    Compulsory  Process  for  "Witnesses. 

By  Amendment  VI  and  similar  provisions  in  the  state  con- 
stitutions the  accused  has  the  privilege  of  compulsory  process 
for  obtaining  witnesses  in  his  favor,  that  is,  to  have  the 
machinery  of  the  law  employed  in  his  behalf,  as  it  may  be 
employed  in  behalf  of  the  prosecution,  for  the  purpose  of  bring- 
ing witnesses  into  court  and  compelling  them  to  testify.  There 
is  nothing  exceptional,  however,  in  this  requirement,  for  in  all 
cases  tried  in  a  judicial  tribunal  the  parties  are  generally  en- 
titled to  have  compulsory  process  for  securing  the  attendance 
and  testimony  of  witnesses.  In  civil  cases  the  party  desiring 
the  attendance  of  a  witness  may  be  compelled  to  pay  or  tender 
his  legal  fees,  and  perhaps  in  the  absence  of  statutory  provision 
this  is  true  also  as  to  the  accused  in  a  criminal  prosecution, 
but  it  is  generally  provided  by  statute  in  the  interest  of  justice 
that  witnesses  may  be  subpoenaed  for  the  accused  at  the  ex- 
pense of  the  county,  upon  approval  by  the  court,  so  that  the 
accused  in  a  proper  case  may  secure  the  attendance  of  wit- 
nesses in  his  behalf  without  advancing  or  tendering  their  fees. 


§240]  Assistance  of  Counsel.  327 

239.    Right  to  Assistance  of  Counsel. 

The  guaranty  of  the  right  of  the  accused*  to  the  assistance  of 
counsel  in  making  his  defence,  found  in  Amendment  VI,  and 
in  the  state  constitutions,  is  intended  as  an  assurance  against 
the  recognition  in  the  courts  of  a  practice  which  at  one  time 
prevailed  in  the  criminal  courts  of  England  by  which  a  person 
put  on  trial  for  treason  or  felony  was  not  allowed  to  be  repre- 
sented by  counsel  in  his  behalf.  The  general  rules  of  pro- 
cedure in  common-law  courts  allow  in  civil  cases  and  in 
prosecutions  for  lesser  crimes  that  a  defendant  may  have  the 
assistance  of  counsel  if  he  sees  fit,  and  the  exception  in  prose- 
cutions for  treason  or  felony  was  unreasonable. 

The  constitutional  right  of  the  accused  to  be  represented  by 
counsel  does  not  necessarily  involve  the  employment  of  counsel 
for  him  at  the  expense  of  the  state ;  but  it  is  usually  provided 
by  statute  that  if  the  accused  is  unable  by  reason  of  poverty  to 
secure  the  assistance  of  counsel  such  assistance  shall  be  fur- 
nished at  the  state's  expense. 

240.    Excessive  Bail;  Cruel  and  Unusual  Punishments. 

One  of  the  beneficent  rules  of  criminal  procedure  in  courts 
of  common  law  is  that  a  person  accused  of  and  arrested  for  a 
crime  but  not  yet  proven  guilty  in  a  judicial  trial  shall  not,  save 
in  cases  of  the  gravest  character,  be  deprived  of  his  liberty 
while  awaiting  trial,  provided  he  can  give  reasonable  assurance 
that  he  will  appear  when  his  case  is  brought  on  for  trial  and 
submit  to  the  punishment  imposed,  should  he  be  found  guilty ; 
and  he  is  allowed  to  give  this  assurance  by  the  execution  of  a 
bond  with  a  money  penalty  signed  by  persons  who  are  finan- 
cially responsible  and  who  undertake  that  he  shall  be  present 
when  required,  and  submit  to  the  punishment  imposed.  The 
term  "  bail "  is  in  common  parlance  used  indiscriminately  to  in- 
dicate either  the  bond  which  is  furnished  or  the  pefsons  who 
bind  themselves  under  penalty  to  see  that  the  accused  appears 
when  required.  In  prosecutions  for  the  graver  crimes  the 
accused   must  be   arrested   and   brought  before  the  court  or 


328 


Prosecutions  for  Crime.  [§  240 


voluntarily  appear  and  subject  himself  to  arrest ;  the  court  can- 
not proceed  if  the  prisoner  by  escaping  either  before  or  after 
arrest  prevents  the  prosecution  from  having  him  actually  in  the 
presence  of  the  court.  Therefore,  release  on  bail  after  arrest 
may  properly  be  refused  in  cases  of  treason  or  murder  or  other 
crime  which  may  be  punished  capitally,  for  it  is  not  to  be 
supposed  that  any  pecuniary  consideration  or  any  consideration 
for  bondsmen  would  be  adequate  to  restrain  the  escape  of  one 
who  feared  a  conviction  that  would  result  in  the  loss  of  his  life. 
In  some  state  constitutions  there  are  specific  provisions  as  to 
the  cases  in  which  bail  may  be  allowed,  but  in  the  absence  of 
such  specific  provisions  it  is  to  be  allowed  in  the  general  dis- 
cretion of  the  court,  subject  to  such  statutory  regulations  as 
may  have  been  adopted.  Release  on  bail  is  the  rule  and  the 
refusal  of  bail  is  the  exception ;  but  the  amount  of  bail,  that  is, 
the  penalty  to  be  fixed  in  the  bail  bond  and  exacted  from  the 
sureties  in  case  the  accused  does  not  appear  for  trial  or  render 
himself  for  punishment  in  case  he  is  found  guilty,  is  to  be  fixed 
by  the  judge  or  court.  The  accused  who  has  been  released  on 
bail  is  supposed  to  be  in  the  custody  of  or  under  the  supervision 
of  his  sureties,  who  are  authorized  to  surrender  him  to  the 
proper  officers  in  case  they  wish  to  relieve  themselves  from 
further  responsibility.  The  provision  of  Amendment  VIII,  that 
excessive  bail  shall  not  be  required,  is  by  implication  a  direc- 
tion that  bail  shall  not  be  refused  in  a  proper  case ;  but  it  is 
directory  rather  than  mandatory,  for  there  must  be  authority 
somewhere  to  determine  whether  the  charge  is  one  of  such 
nature  that  bail  should  not  be  allowed,  or  if  bail  is  allowed  the 
amount  of  bail  which  should  be  required. 

It  is  usually  provided  that  even  after  conviction,  save  in  cases 
where  bail  may  properly  be  denied  on  account  of  the  nature 
of  the  crime,  the  accused  may  be  released  on  bail  pending  an 
appeal  from  his  conviction  to  the  proper  appellate  court. 

Amendment  VIII  also  prohibits  the  infliction  of  cruel  and 
unusual  punishments.  The  common  law  as  administered  in 
England  in  earlier  times  authorized  barbarous  punishments 
such  as  being  drawn  and  quartered  or  maimed  or  branded  or 


§  241]  Habeas  Corpus.  329 

disfigured ;  and  while  the  death  penalty  for  very  grave  crimes, 
such  as  treason  and  murder,  has  been  retained,  the  infliction 
of  such  penalty  in  any  barbarous  or  unusual  manner  would  be 
in  violation  of  the  guaranties  of  the  federal  and  state  constitu- 
tions. Hanging  as  a  means  of  inflicting  the  death  penalty  has 
been  continuously  practised  as  a  proper  method,  and  perhaps 
decapitation  would  not  be  an  improper  method,  although  it  is 
unusual.  Execution  by  electricity  has  been  held  not  to  be 
such  a  cruel  method  of  inflicting  capital  punishment  as  to  be 
open  to  constitutional  objection  (///  re  Kenimler).  Whipping 
as  a  punishment  for  certain  oflences  is  authorized  by  the  laws 
of  some  of  the  states.  It  may  be  announced  as  a  safe  rule  that 
whatever  forms  of  punishment  were  usual  at  the  time  of  the 
adoption  of  the  state  constitutions  would  still  be  authorized. 

241.    Writ  of  Habeas  Corpus. 

A  legal  remedy  against  unlawful  deprivation  of  personal 
liberty  which  is  peculiarly  applicable  as  to  criminal  prosecu- 
tions, although  it  is  not  expressly  limited  to  such  cases,  is  the 
writ  of  habeas  corpus^  which  is  granted  by  a  court  or  judge  on 
an  application  under  oath  alleging  that  some  person  named  is 
illegally  imprisoned  or  restrained  of  his  liberty,  and  asking  that 
the  person  exercising  such  imprisonment  or  restraint  be  re- 
quired to  come  before  the  court  or  judge  to  show  under  what 
authority  his  power  is  being  exercised.  If  the  person  agamst 
whom  the  proceeding  is  brought  can  show  lawful  authority,  as 
where  a  parent  is  restraining  his  child,  or  a  guardian  his  ward, 
or  where  an  officer  is  imprisoning  one  accused  or  convicted  of 
crime  under  legal  process  of  arrest  or  by  way  of  punishment 
lawfully  imposed,  then  the  proceeding  will  be  dismissed ;  but 
if  no  lawful  authority  can  be  shown  for  the  imprisonment  or 
restraint,  the  court  or  judge  hearing  the  case  may  order  the 
person  found  to  be  illegally  restrained  set  at  Hberty. 

As  applicable  to  criminal  prosecutions,  the  proceeding  by 
habeas  corpus  enables  the  court  or  judge  before  whom  it  is 
brought  to  inquire  into  the  legality  of  the  arrest  of  a  person 


330  Prosecutions  for  Crime.  [§  241 

complaining  of  unlawful  detention.  If  the  accused  has  been 
refused  bail,  a  proper  method  of  securing  the  release  on  bail, 
if  the  offence  is  a  bailable  one,  is  by  use  of  this  writ.  But  the 
proceeding  is  not  a  method  for  revising  or  reviewing  the  action 
of  the  court  which  has  jurisdiction  to  hold  the  accused  for  trial, 
or  for  freeing  him  from  restraint  under  arrest  or  commitment  for 
an  offence  charged  so  long  as  the  court  is  proceeding  lawfully 
and  without  violation  of  constitutional  guaranties. 

As  a  general  rule  one  court  will  not  by  writ  of  habeas  corpus 
interfere  with  restraint  or  imprisonment  by  virtue  of  the  author- 
ity of  another  court ;  and  the  fact  that  the  federal  courts  while 
acting  within  the  scope  of  their  authority  are  superior  to  the 
state  courts,  and  are  given  ultimate  power  to  determine  the  ex- 
tent of  their  authority,  renders  it  impossible  for  a  state  court 
to  exercise  jurisdiction  by  writ  of  habeas  corpus  to  determine 
the  legality  of  imprisonment  or  restraint  under  the  authority  of 
a  federal  court  {Tarble's  Case).  One  who  is  unlawfully  impris- 
oned or  restrained  under  the  pretended  authority  of  a  federal 
court  is  not  without  redress,  but  he  should  seek  it  by  applica- 
tion to  a  federal  court  or  judge.  On  the  other  hand  the  federal 
judiciary  in  affording  the  protection  guaranteed  in  the  federal 
constitution  as  against  state  authority  in  particular  classes  of 
cases  has  the  power  to  inquire  into  the  legality  of  the  proceed- 
ings of  a  state  court  if  it  is  contended  that  under  such  authority 
a  person  is  being  deprived  of  some  right  guaranteed  to  him  by 
the  federal  constitution.  Therefore,  a  federal  court  or  judge 
may  in  a  habeas  corpus  proceeding  determine  the  validity  of 
proceedings  under  the  authority  of  a  state  court  (///  re  Neagle). 
But  as  the  person  who  is  unlawfully  proceeded  against  in  a 
state  court  has  usually  other  remedies  for  the  protection  of  his 
rights  under  the  federal  constitution,  such  as  an  appeal  to  the 
highest  court  of  the  state,  and  on  denial  there,  an  appeal  to  the 
Supreme  Court  of  the  United  States,  the  federal  courts  will 
interfere  by  habeas  corpus  with  proceedings  under  the  author- 
ity of  a  state  court  only  in  a  case  of  peculiar  urgency,  and  will 
usually  leave  the  complaining  party  to  his  remedy  by  appeal 
(Whitten  v.  To77ilinsofi). 


§  243]       Suspension  of  Habeas  Corpus.         331 

242.    Suspension  of  Habeas  Corpus. 

To  protect  the  privilege  of  resorting  in  a  proper  case  to  pro- 
ceedings by  habeas  corpus  the  federal  constitution  as  well  as  the 
constitutions  of  the  various  states  contain  provisions  regulating 
the  suspension  of  the  writ.  The  provision  of  the  federal  consti- 
tution is  that  "  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended  unless  when  in  cases  of  rebellion  or  invasion 
the  public  safety  may  require  it"  (Art.  I,  §  9,  H  2).  Such  sus- 
pension is  involved  in  the  declaration  of  martial  law  (see 
above,  §  114),  and  is  only  proper  when  it  becomes  necessary 
temporarily  to  subject  the  exercise  of  civil  authority  to  the 
military  power.  It  has  been  the  subject  of  much  discussion 
whether  without  legislative  authority  the  president  may  suspend 
the  writ  on  his  own  judgment  in  cases  of  rebellion  or  invasion 
{Ex  parte  Merryman  and  Ex  parte  Milligan).  But  he  may 
be  authorized  to  do  so  by  statute,  as  was  done  in  1863,  1866, 
and  1867. 

In  the  absence  of  any  suspension  of  the  writ  on  account  of 
such  emergency  as  is  contemplated  by  the  constitution,  the 
right  to  the  writ  for  the  purpose  of  having  determined  by 
judicial  authority  the  lawfulness  of  imprisonment  or  other  dep- 
rivation of  personal  liberty  is  a  constitutional  right,  and  the 
prohibition  against  its  suspension  is  regarded  as  one  of  the  per- 
sonal guaranties  of  civil  liberty.  In  the  constitutional  history 
of  England  the  final  establishment  of  the  right  to  a  judicial  in- 
quiry as  to  the  lawfulness  of  any  arrest  or  detention,  even  under 
the  authority  of  the  king  himself,  was  the  final  step  in  the  complete 
recognition  of  individual  liberty  and  the  subordination  of  the 
executive  authority  to  the  limitations  imposed  by  constitutional 
government.  The  right  was  finally  established  in  England  by 
the  Habeas  Corpus  Act,  passed  in  1679,  which  is  regarded  as 
one  of  the  fundamental  charters  of  civil  liberty. 

243.    Waiver  of  Constitutional  Guaranties. 

While  the  protection  afforded  by  the  guaranties  found  in  the 
federal  or  a  state  constitution  is  often  spoken  of  as  the  inalien- 


332  Prosecutions  for  Crime.  [§  243 

able  right  of  one  accused  of  crime,  it  does  not  follow  that  such 
guaranties  may  not  be  waived  by  the  accused.  While  he  cannot 
by  any  act  of  his  give  jurisdiction  to  a  court  which  under  the 
law  does  not  have  jurisdiction,  nor  consent  to  a  punishment 
which  a  court  cannot  lawfully  inflict,  there  is  no  inherent  rea- 
son why  he  may  not  waive  any  provisions  of  the  constitution 
or  the  law  which  are  intended  for  his  protection,  provided  he 
freely  and  in  the  possession  of  a  sound  mind  exercises  the  dis- 
cretion of  doing  so  for  his  own  presumed  advantage.  He  can- 
not waive  the  necessity  for  his  presence  in  the  court  on  a  trial 
for  treason  or  felony,  because  the  court  has  no  jurisdiction  to 
proceed  without  his  presence ;  nor  can  he  consent  to  be  tried 
in  a  court  which  is  not  authorized  by  law  to  try  prosecutions 
for  the  offence  with  which  he  is  charged  ;  nor  can  he  consent 
to  death  or  imprisonment  as  a  punishment  for  an  offence  for 
which  such  punishment  is  not  provided  ;  but  he  may  waive  a  jury 
trial  by  plea  of  guilty  {Hallinger  v.  Davis)  and  may  waive  ob- 
jections to  evidence  which  he  might  interpose  according  to  con- 
stitutional provisions ;  and  he  may  consent  to  be  tried  without 
a  jury  provided  the  court  is  legally  authorized  to  proceed  to  try 
a  criminal  case  without  a  jury  {Harris  v.  People  of  Illinois)  ; 
and  without  question  he  may  waive  a  speedy  trial  or  the  assist- 
ance of  counsel  or  any  of  the  other  provisions  specially  intended 
to  secure  to  him  a  fair  trial. 


CHAPTER  XLIII. 
TRIAL  BY  JURY. 
244.    References. 

J.  Story,  Constitution,  §§  1768-1772  ;  J.  R.  Tucker,  Constitution,  §  334; 
T.  M.  Cooley,  Constitutional  Law,  ch.  xiii,  §  5  ;  H.  C.  Black,  Constitutional 
Law,  §§  220-223  ;  M.  Hale,  History  of  the  Cof?imon  Law,  ch.  xii ;  W.  Black- 
stone,  Commentaries,  HI,  ch.  xxiii,  and  note  in  Hammond's  ed.,  507; 
J.  F.  Dillon,  Laws  ami  Jurisprudence  of  England  and  America,  121-132  ; 
The  Federalist,  No.  83;  Capital  Traction  Co.  v.  Hof  {i^g(),  174  U.  S.  I  ; 
McClain's  Cases,  956)  ;  Vicksburg  dr'  Meridian  Railroad  Co.  v.  Putnam 
(1886,  118  U.  S.  545;  McClain's  Cases,  963);  Eilenbecker  v.  Plymouth 
County  (1890,  134  U.  S.  31  ;  Thayer's  Cases,  673)  ;  In  re  Debs  (1895,  158 
U.  S.  564) ;  Maxwell  v.  Dcnv  (1900,  176  U.  S.  581). 

245.    Constitutional  Provisions. 

Jury  trial  is  not  only  guaranteed  in  criminal  prosecutions  (see 
above,  §  235),  but  also  in  civil  suits,  by  Amendment  VII  of  the 
federal  constitution,  "  In  suits  at  common  law,  where  the  value 
in  controversy  shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ;  and  no  fact,  tried  by  a  jury,  shall  be 
otherwise  re-examined  in  any  court  of  the  United  States,  than 
according  to  the  rules  of  the  common  law." 

These  provisions  are  analogous  to  those  found  in  the  various 
state  constitutions  on  the  same  subject,  the  general  purpose  be- 
ing to  preserve  as  a  distinctive  and  important  feature  of  judicial 
procedure  the  common-law  trial  by  jury  as  a  safeguard  against 
the  encroachments  of  arbitrary  power.  The  evident  intent  has 
been  to  preserve  it  in  form  and  substance  as  it  was  known  in 
the  courts  of  Great  Britain  and  the  colonies,  for  it  was  re- 
garded by  the  people  as  a  right  to  which  as  British  subjects 

333 


334  Trial  by  Jury.  [§  246 

they  were  entitled  ;  which  they  were  anxious  to  preserve  as 
against  any  encroachments  by  the  royal  government ;  and  which 
they  thought  it  necessary  to  perpetuate  as  against  any  pos- 
sible encroachment  by  the  governments  established  under  the 
constitutions. 

246.  Selection  of  a  Jury. 

Jury  trial  as  guaranteed  in  general  terms  means  a  determina- 
tion of  questions  of  fact  in  cases  tried  at  law,  either  civil  or 
criminal  (as  distinct  from  civil  cases  tried  in  equity),  by  a  jury 
of  twelve  qualified  persons  selected,  in  accordance  with  legal 
methods,  for  the  particular  case  and  constituting  for  the  time 
being  a  part  of  the  machinery  of  the  court  to  find  the  ultimate 
facts,  and  under  the  instructions  of  the  judge  as  to  the  law 
render  a  general  verdict  which  has  received  the  unanimous  ap- 
proval of  the  twelve  jurors,  which  verdict  determines  the  case 
as  between  the  parties  and  furnishes  the  basis  for  a  judgment 
in  favor  of  one  party  against  the  other  to  be  rendered  by  the 
court.  The  essential  features  of  this  form  of  trial  are  numer- 
ous and  they  cannot  all  be  elaborated  here  j  but  briefly  they 
are  as  follows. 

By  some  suitable  means  of  procedure  twelve  persons  are 
secured  for  the  trial  of  the  particular  case ;  they  are  usually  re- 
quired to  be  citizens  of  the  state  or  United  States,  as  the  case 
may  be,  possessing  full  mental  capacity  and  in  the  enjoyment  of 
the  faculties  of  seeing  and  hearing  so  that  they  may  rightly  and 
fully  comprehend  the  evidence  presented  to  them.  It  is  usu- 
ally required  that  they  be  selected  from  the  class  of  persons 
who  are  entitled  to  exercise  the  elective  franchise,  but  there  is 
no  necessary  connection  between  the  right  to  vote  and  the 
capacity  to  serve  as  juror. 

Some  classes  of  persons  are  as  a  matter  of  public  policy  ex- 
empted from  the  obligation  to  serve  on  juries,  such  exemp- 
tions usually  extending  to  physicians,  lawyers,  teachers,  and 
public  officers  whose  business  or  public  duties  are  such  as  to 
be  seriously  interfered  with  to  the  public  detriment  if  jury  ser- 
vice is  required  of  them.     It  is  left  discretionary  with  the  court 


§246]  Selection  of  a  Jury.  335 

to  excuse  in  particular  instances  other  persons  who  by  reason  of 
some  special  emergency  would  be  unreasonably  inconvenienced 
or  damaged  by  such  compulsory  service  ;  but  mere  interference 
with  ordinary  business  or  occupation  is  not  regarded  as  just 
ground  of  excuse,  for  the  citizen  can  be  properly  required  to 
perform  his  public  duties  without  regard  to  the  effect  upon  his 
private  interests. 

A  juror  to  be  qualified  to  sit  in  a  case  must  be,  however,  not 
only  generally  qualified  to  discharge  such  duty,  but  he  must  also 
be  qualified  with  reference  to  the  particular  case  in  which  he  is 
to  sit ;  that  is,  he  must  be  substantially  without  bias  or  prejudice 
which  would  be  likely  to  interfere  with  his  rendering  a  fair  and 
impartial  verdict.  Therefore  one  who  has  formed  or  expressed 
an  opinion  as  to  the  merits  of  the  case,  or  is  so  related  to  one 
of  the  parties  that  he  is  likely  to  be  predisposed  to  favor 
him,  or  who  occupies  a  position  of  hostility  towards  one  of  the 
parties  which  would  predispose  him  to  a  decision  hostile  to 
such  party's  interests  may  properly  be  excluded.  The  general 
and  special  qualifications  of  each  particular  juror  are  inquired 
into,  and  if  for  any  reason  he  appears  to  be  disqualified  the 
party  desiring  that  he  shall  not  serve  as  a  juror  in  the  trial  of 
the  case  interposes  a  fhallenge  for  cause,  and  if  the  judge  con- 
siders the  objection  to  be  well  taken  such  person  is  not  selected 
as  one  of  the  jurors. 

There  may  be  special  reasons  why  a  person  called  as  a  juror 
would  not  be  likely  to  render  a  fair  verdict  in  a  case  between 
the  parties,  other  than  the  general  reasons  just  suggested,  and 
it  is  usually  provided  that  each  party  shall  have  a  number  of 
so-called  peremptory  challenges  which  he  may  exercise  for  the 
purpose  of  excluding  such  persons  from  the  jury  as  he  de- 
sires to  object  to,  although  no  legal  reason  for  such  -exclusion 
is  given.  When  twelve  persons  are  secured  against  whom  no 
valid  objection  is  found  to  exist  and  to  whom  no  peremptory 
challenge  is  interposed,  these  twelve  persons  are  sworn  to  render 
a  fair  and  impartial  verdict  in  the  case'and  become  the  jury  for 
the  trial. 


336  Trial  by  Jury.  [§  248 

247.  Evidence  to  the  Jury;  Instructions. 

The  jurors  thus  sworn  hear  the  evidence  which  the  trial  judge 
permits  to  be  offered.  In  determining  what  evidence  is  to  be 
offered  and  considered  the  judge  apphes  rules  of  law  and  the 
jury  is  authorized  only  to  consider  the  evidence  which  is  sub- 
mitted to  them.  They  have  no  right  to  take  into  account 
matters  of  fact  not  shown  by  the  evidence,  such  as  particular 
facts  relating  to  the  case  which  they  know  or  believe  as  of  their 
own  knowledge.  They  are  to  try  the  case  under  the  direction 
of  the  court  as  to  what  testimony  or  facts  are  properly  admissi- 
ble as  affecting  the  verdict  which  they  shall  render. 

Having  heard  the  evidence  submitted  to  them,  the  jurors  are 
instructed  by  the  judge  as  to  the  rules  of  law  which  they  are  to 
follow  in  reaching  a  conclusion  from  the  evidence  that  is  sub- 
mitted, and  they  have  no  right  to  exercise  their  own  judgment 
as  to  the  rules  and  principles  of  law  applicable  to  the  case. 
The  determination  of  the  law  is  for  the  judge  in  the  discharge 
of  his  legal  duty.  But  the  credibility  of  the  witnesses  and  the 
weight  of  the  evidence  is  for  the  determination  of  the  jury  in 
the  exercise  of  their  discretion,  and  the  judge  should  not  inter- 
fere with  or  control  them  in  its  exercise.  In  some  states  the 
statutes  very  specifically  prohibit  any  comments  by  the  judge  as 
to  the  credibility  of  the  witnesses  or  weight  of  the  evidence ; 
in  other  states  and  in  the  federal  courts  the  judge  may  discuss 
the  evidence  for  the  enlightenment  of  the  jury,  though  he  can- 
not control  the  conclusions  which  they  see  fit  to  draw  from  the 
evidence  properly  presented  to  them  (  Vicksburg,  etc.  R.  Co.  v. 
Putnam). 

248.   Verdict  of  the  Jury. 

After  being  instructed  by  the  judge  as  to  the  law  applicable 
to  the  case  the  jurors  consider  by  themselves,  without  the  pres- 
ence of  the  judge  or  any  other  person,  the  evidence  submitted 
to  them  and  the  instructions  given,  and  if  they  are  able  to  do  so 
they  agree  unanimously  upon  a  verdict  in  favor  of  one  party 
or  the  other.     If  they  are  unable  to  agree  on  a  verdict  then  the 


§248]  Verdict  of  the  Jury.  337 

case  must  be  resubmitted  in  full  before  another  jury,  for  accord- 
ing to  the  common  law  no  verdict  can  be  rendered  one  way 
or  the  other  unless  all  the  jurors  concur  therein.  In  some 
states  there  are  constitutional  provisions  for  a  majority  verdict 
or  for  a  verdict  of  a  specified  number  of  jurors  more  than  a 
majority  and  less  than  all,  but  any  such  provision  constitutes  a 
modification  of  the  common-law  jury  trial. 

The  conclusion  of  the  jury  as  to  the  facts  reached  under  the 
direction  of  the  court  as  to  the  law  is  a  final  and  conclusive 
determination  of  the  case  which  the  judge  must  recognize  and 
embody  in  the  final  judgment  to  be  rendered  by  the  court  as 
the  result  of  the  trial.  If  it  is  manifest  that  the  jury  has  not 
followed  the  direction  of  the  judge  in  applying  the  law,  the 
verdict  may  be  set  aside  by  the  judge  and  a  new  trial  granted. 
If  the  judge  is  satisfied  that  in  some  essential  respect  there  is 
no  competent  evidence  to  support  the  verdict  of  the  jury,  he 
may  set  it  aside  as  not  supported  by  the  evidence.  If  the 
judge  is  satisfied  that  the  jurors  have  rendered  their  verdict  as 
the  result  of  passion  or  prejudice  and  not  through  a  full  and 
fair  consideration  of  the  evidence  submitted,  he  may  set  it 
aside  on  that  ground.  If  the  jurors  have  been  guilty  of  some 
misconduct  such  as  conversing  with  persons  outside  of  court 
with  reference  to  the  merits  of  the  case  while  it  is  being  tried, 
or  have  allowed  other  persons  to  be  present  during  their  delib- 
erations, or  have  heard  statements  by  fellow-jurors  as  to  facts 
not  shown  by  the  evidence  and  calculated  to  influence  them  in 
reaching  a  conclusion,  or  have  determined  the  result  otherwise 
than  by  a  consideration  of  the  evidence,  as  by  casting  lots  to 
determine  what  their  verdict  shall  be,  then  the  judge  will  set 
aside  their  verdict  for  such  misconduct.  The  result  of  setting 
aside  the  verdict  is  in  all  cases  that  a  new  trial  is  ordered.  No 
irregularity  on  the  part  of  the  jury  in  reaching  a  verdict  will 
justify  the  judge  in  rendering  a  decision  for  one  party  or  the 
other.  The  judge  may  also  set  aside  a  verdict  and  grant  a  new 
trial  if  he  is  convinced  that  he  himself  has  committed  an  error 
in  material  rulings  on  the  admission  of  evidence  or  in  instruct- 
ing the  jury  as  to  the  law.     In  criminal  prosecutions  the  rule 


338  Trial  by  Jury.  '  [§  250 

that  the  accused  shall  not  be  twice  put  in  jeopardy  for  the  same 
crime  makes  a  verdict  of  "not  guilty  "  conclusive  regardless  of 
any  error  of  law  or  misconduct  of  the  jury  (see  above,  §  232), 
but  if  the  verdict  is  against  the  accused  then  the  same  judicial 
discretion  may  be  exercised  by  the  judge  as  in  a  civil  case  in 
setting  aside  the  verdict  and  granting  a  new  trial. 

249.   The  Jury  in  Inferior  Courts. 

Constitutional  provisions  as  to  jury  trial  are  in  general  appli- 
cable only  to  courts  of  general  jurisdiction.  Inferior  courts 
may  be  provided  for  in  which  questions  of  fact  may  be  tried 
before  a  jury  of  less  than  twelve,  or  even  without  a  jury,  the 
right  of  jury  trial  being  sufficiently  preserved  in  such  cases  if  an 
appeal  from  the  judgment  of  such  a  court  to  a  court  of  general 
jurisdiction  is  provided  for  in  which  a  jury  trial  may  be  had 
{Capital  Traction  Co.  v.  Hof).  In  limiting  the  requirements  as 
to  jury  trial  to  cases  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  intention  evidently  was  to  allow  Con- 
gress to  provide  if  it  saw  fit  for  the  trial  of  petty  cases  in  the 
federal  courts  without  a  jury ;  but  as  a  matter  of  fact  no  provi- 
sion is  made  for  such  trials. 

250.  The  Jury  in  Equity  Cases. 

It  has  already  been  stated  that  the  article  of  the  federal 
constitution  on  the  judiciary  recognizes  a  distinction  between 
cases  at  law  and  cases  in  equity  (see  above,  §  146)  and  Amend- 
ment VII  guarantees  jury  trial  only  in  cases  at  law.  In  equity 
cases,  that  is,  cases  which  according  to  the  practice  in  England 
at  the  time  the  colonies  became  independent  were  triable  in 
courts  of  chancery,  the  judge  determined  both  the  law  and  the 
facts ;  and  jury  trial  was  not  recognized  except  that  in  a  case 
involving  an  issue  of  fact  which  might  have  been  tried  in  a  law 
court  the  judge  could  in  his  discretion  refer  the  determination 
of  such  issue  to  a  law  court  having  a  jury.  In  many  of  the 
states  the  same  courts  now  try  both  law  and  equity  cases,  pro- 
ceeding in  the  latter  substantially  in  accordance  with  the  chan- 
cery practice  and  determining  both  the  law  and  the  fact  without 


§251]  Re-examination  of  Cases.  339 

the  assistance  of  a  jury,  and  this  is  the  method  adopted  in  the 
organization  of  the  federal  courts  so  tJiat  the  question  whether 
there  shall  be  a  jury  trial  in  a  case  depends  not  upon  the  court 
in  which  the  case  is  tried  but  upon  the  nature  of  the  case. 

If  the  case  is  one  properly  triable  in  equity  and  the  procedure 
is  in  that  form,  it  cannot  be  objected  that  the  defendant  is 
thereby  deprived  of  trial  by  jury  {Eileiibecker  v.  Plymouth 
County  and  In  re  Debs). 

251.    Re-ezamination  of  Cases  Tried  by  Jury. 

By  the  provision  of  the  federal  constitution,  that  "no  fact 
tried  by  a  jury  shall  be  otherwise  re-examined  in  any  court  of 
the  United  States  than  according  to  the  rules  of  the  common 
law  "  (Am.  VII)  it  was  simply  intended  to  prohibit  a  review  by  a 
court  sitting  without  a  jury,  of  the  conclusion  of  fact  reached 
by  a  jury  in  the  trial  of  such  a  case ;  that  is,  a  trial  judge  can- 
not set  aside  the  verdict  of  the  jury  and  render  a  judgment  on 
his  own  conclusions  of  fact,  nor  can  an  appellate  court  review 
the  conclusions  of  fact  reached  by  a  jury  and  render  a  judgment 
on  the  evidence  disregarding  the  verdict  which  the  jury  has 
reached  on  the  facts.  Although  this  specific  provision  is  not 
usually  found  in  state  constitutions,  the  same  rule  is  necessarily 
involved  in  the  guaranty  of  jury  trial.  The  appellate  court  in 
a  case  tried  at  law  before  a  jury  can  review  the  rulings  of  the 
trial  judge  and  can  reverse  the  decision  rendered  on  the  verdict 
of  the  jury  for  errors  of  law  committed,  and  on  such  review  it 
may  determine  whether  the  judge  has  committed  an  error  of 
law  in  refusing  to  set  aside  the  verdict  on  the  ground  that  such 
verdict  is  without  support  in  the  evidence,  or  is  the  result  of 
passion  or  prejudice,  or  on  similar  grounds,  but  it  cannot  review 
the  evidence  for  the  purpose  of  determining  whether  the  jury 
reached  a  correct  conclusion.  In  equity  cases,  however,  the 
appellate  court  may  review  the  judgment  of  the  trial  court, 
both  as  to  law  and  as  to  the  facts,  and  it  is  usually  provided  that 
on  appeal  in  an  equity  case  the  appellate  court  shall  try  the  case 
anew  on  the  evidence  submitted  to  the  trial  court,  and  render 
such  decision  as  should  have  been  rendered  under  the  evidence. 


340  Trial  by  Jury.  [§  254 

252.    "Waiver  of  Jury  Trial. 

The  right  to  trial  by  jury  in  a  court  of  law  is  one  which  may 
be  waived  by  the  person  entitled  thereto,  and  such  courts  are 
generally  authorized  to  try  cases  without  a  jury  where  both 
parties  consent  thereto.  In  a  case  so  tried,  the  conclusion  of 
the  judge  as  to  the  facts  takes  the  place  of  the  verdict  of  a 
jury.  In  criminal  cases  courts  are  not  usually  authorized  to 
proceed  without  a  jury,  and  it  is  often  stated  that  jury  trial  can- 
not be  waived  in  a  criminal  case  ;  but  there  seems  to  be  no 
reason  why  if  the  court  is  by  law  authorized  to  proceed  in  a 
criminal  case  by  the  consent  of  the  defendant  without  a  jury, 
such  a  trial  would  not  be  valid.     (See  above,  §  243.) 

253.    Modification  of  Trial  by  Jury. 

As  the  first  eight  amendments  to  the  federal  constitution 
apply  to  the  federal  government  only,  and  are  not  limitations 
upon  the  powers  of  the  states,  there  is  no  reason  why  the  method 
of  trial  by  jury  recognized  at  common  law  may  not  be  modified 
or  superseded  in  any  state  by  the  amendment  of  the  state 
constitution,  even  though  such  state  constitution  as  originally 
adopted  contained  a  guaranty  of  the  right  of  jury  trial.  "  Due 
process  of  law  "  which  the  states  are  by  Amendment  XIV  pro- 
hibited from  impairing  does  not  necessarily  involve  jury  trial, 
at  least  in  civil  cases  {Maxwell  v.  Dow).  But  due  process  of 
law  does  necessarily  involve  trial  in  a  duly  constituted  judicial 
tribunal,  and  whether  such  tribunal  shall  proceed  in  accord- 
ance with  common-law  methods  of  trial  or  shall  be  author- 
ized to  determine  cases  by  some  other  recognized  method,  as 
the  trial  by  a  judge  without  a  jury,  is  for  the  states  to  deter- 
mine. Of  course  no  modification  of  trial  by  jury  could  be 
made  in  the  federal  courts  without  an  amendment  to  the  federal 
constitution. 

254.    Expediency  of  Provisions  as  to  Jury  Trial. 

The  historical  fact  that  the  colonists  regarded  jury  trial  as 
■an  essential  of  the  common-law  system  of  administering  justice 


§  2  54]  Expediency.  341 

and  that  it  has  been  guaranteed  in  all  the  state  constitutions 
as  well  as  in  the  bill  of  rights  incorporated  in  the  federal  con- 
stitution soon  after  its  adoption  by  way  of  amendment,  proves 
that  it  was  regarded  as  one  of  the  important  safeguards  against 
oppression  by  a  tyrannical  government  and  the  danger  that  the 
governments  in  which  authority  is  vested  under  our  constitu- 
tional system  might  attempt  to  exercise  like  tyrannical  powers. 
Especially  has  the  importance  of  this  guaranty  been  insisted 
upon  with  reference  to  criminal  prosecutions,  for  it  was  by 
means  of  such  prosecutions  that  the  liberties  of  British  sub- 
jects were,  during  some  periods  of  English  history,  pecuharly 
imperilled. 

But  constitutional  provisions  remain,  after  conditions  leading 
to  their  adoption  have  disappeared,  and  it  can  hardly  be  thought 
that  there  is  longer  any  necessity  for  jury  trial  as  a  bulwark 
against  tyranny  on  the  part  of  the  government  with  reference  to 
the  individual.  It  may  perhaps  still  be  reasonably  deemed 
important  that  one  accused  of  crime  in  a  prosecution  necessarily 
instituted  and  carried  on  by  a  public  prosecutor  representing 
the  interests  of  the  government  shall  have  the  right  to  this  form 
of  trial,  which  secures  the  determination  of  the  question  of 
guilt  or  innocence  by  '^  twelve  good  and  true  men  "  taken  from 
the  body  of  people  ;  and  there  has  been  no  serious  discussion 
of  the  expediency  of  abolishing  jury  trial  in  criminal  cases. 
But  the  same  considerations  do  not  apply  in  civil  cases,  involv- 
ing as  they  do  only  a  contest  between  individuals  as  to  their 
respective  rights ;  and  it  has  been  seriously  questioned  whether 
in  such  cases  some  better  form  of  trial  might  not  be  introduced 
for  the  determining  of  questions  of  fact.  The  necessity  for 
maintaining  a  careful  distinction  between  questions  of  law  and 
questions  of  fact  renders  the  trial  of  a  jury  case  comphcated 
and  difficult.  There  is  much  greater  danger  of  the  commission 
by  the  court  of  errors  of  law  which  will  necessitate  a  new  trial 
on  the  theory  that  the  jury  may  have  been  misled  as  to  the 
law,  than  there  would  be  if  the  trial  judge  determined  both  the 
law  and  the  facts  and  rendered  his  judgment  on  the  issues  and 
evidence  presented.     There  is  more  opportunity  for  the  exercise 


342  Trial  by  Jury.  [§  254 

of  corrupt  influences  for  the  purpose  of  securing  an  unjust  ver- 
dict or  preventing  the  rendition  of  a  just  verdict  when  the  result 
may  be  affected  by  influences  brought  to  bear  upon  any  one 
of  twelve  jurors  who  are  selected  largely  at  random.  They  are 
not  trained  to  the  responsibility  of  the  discharge  of  legal  duties 
which  rests  upon  a  judge  whose  training  and  experience  have 
prepared  him  for  the  exercise  of  a  sound,  independent,  and 
unbiassed  judgment,  and  the  publicity  of  whose  life  and  duties 
removes  him  to  a  considerable  extent  from  the  danger  of  being 
approached  for  improper  purposes.  Great  delay  in  the  admin- 
istration of  justice  may  be  occasioned  by  the  necessity  of  grant- 
ing another  trial  when  for  any  reason  the  first  trial  has  not  ended 
in  a  verdict  which  can  be  sustained.  And  finally  the  require- 
ment that  the  verdict  be  unanimous  enables  one  juror,  although 
actuated  by  prejudice  or  corrupt  motives,  to  defeat  the  ren- 
dition of  such  a  verdict  as  the  evidence  requires. 

As  against  these  objections  and  any  arguments  for  modifying 
trial  by  jury  or  superseding  it  by  some  other  form  of  trial  it 
may  well  be  urged  that  a  jury  made  up  of  men  of  average  intel- 
ligence is  quite  as  well  qualified  as  one  person  trained  in  the 
law  to  determine  questions  of  fact;  that  a  certain  amount  of 
assurance  that  justice  will  be  done  as  between  man  and  man 
is  encouraged  by  leaving  the  ultimate  decision  to  a  jury ;  that 
while  the  necessity  for  a  unanimous  verdict  may  delay  justice, 
it  affords  a  protection  against  injustice ;  and  finally,  that  the 
well-known  methods  of  procedure  in  accordance  with  which 
rights  are  protected  and  injuries  redressed  should  not  be  changed 
save  for  very  cogent  reasons,  nor  until  it  has  been  very  fully 
agreed  what  method  of  procedure  would  be  better. 

It  is  a  significant  fact  that  although  there  has  been  for  many 
years  much  discussion  in  this  country  of  the  supposed  defects 
of  jury  trial  as  a  means  of  determining  civil  suits,  those  who 
are  most  experienced  in  the  administration  of  law  continue, 
with  rare  exceptions,  to  believe  that  no  better  system  could  be 
devised  for  the  disposition  of  cases  in  which  jury  trial  is  now 
required.  In  some  states  by  constitutional  amendment  verdicts 
may  be  rendered  on  the  concurrence  of  less  than  all  of  the 


§  254]  Expediency.  343 

jurors,  and  such  modification  of  the  method  of  jury  trial  seems 
to  have  been  generally  satisfactory  where  introduced,  but  there 
is  a  manifest  reluctance  to  introduce  any  extensive  change  in 
the  jury  system,  and  practically  no  concerted  effort  has  been 
made  anywhere  to  entirely  abolish  it.  It  seems  likely  that  for 
a  long  time  to  come  the  present  jury  system  will  be  preserved 
in  most  of  tl-^e  states  of  the  Union  and  in  the  federal  courts. 


CHAPTER   XLIV. 

DUE  PROCESS   OF  LAW;   EQUAL  PROTECTION. 

255.    References. 

T.  M.  Cooley,  Constitutional  Limitations,  ch.  xi ;  J.  I.  C.  Hare,  Consti- 
tutional LaWy  §  39;"  J.  R.  Tucker,  Constitution,  §  390;  J.  N.  Pomeroy, 
Constitutional  Law,  §§  245-250;  T.  M.  Cooley,  Constitutional  Law,  ch. 
xiii,  §  4,  and  ch.  xvi,  §  2  ;  H.  C.  Black,  Constitutional  Law,  §§  212-214; 
L.  P.  McGehee,  Due  Process  of  Law  ;  W.  D.  Guthrie,  Fourteenth  Amend- 
ment;  Murray^ s  Lessee  \.  The  Hoboken  Land  and  Improvement  Co.  (1855, 
18  Howard,  272 ;  McClain's  Cases,  895  ;  Thayer's  Cases,  600)  ;  Eilen- 
becker  v.  Plymouth  County  (1890,  134  U.  S.  31 ;  Thayer's  Cases,  673) ;  In  re 
L>el>s  {iSgs,  158  U.  S.  564) ;  Ex  parte  ^Fa//  (1883,  107  U.  S.  265  ;  McClain's 
Cases,  903)  ;  Hurtado  v.  People  of  California  (1884,  no  U.  S.  516;  Mc- 
Clain's Cases,  905  ;  Thayer's  Cases,  616)  ;  Yick  Wo  v.  Hopkins  (1886,  118 
U.  S.  356;  McClain's  Cases,  917  ;  Thayer's  Cases,  774) ;  Hayes  v.  Mis- 
souri (1887,  120  U.  S.  68  ;  McClain's  Cases,  923)  ;  Pembina  Mining  Com- 
pany V.  Pennsylvania  (1888,  125  U.  S.  181;  McClain's  Cases,  923; 
Thayer's  Cases,  1406)  ;  Missouri  Pacific  Raihvay  v.  Nebraska  (1896,  164 
U.  S.  403;  McClain's  Cases,  1030)  ;  Cunnius  v.  Reading  District  (1905, 
198  U.  S.  458  ;  McClain's  Cases,  2d  ed.,  1038) ;  Pennoyer  v.  Neff{\%T],  95 
U.  S.  714;  McClain's  Cases,  1032)  ;  Arndt  v.  Griggs  (1890,  134  U.  S.  316  ; 
McClain's  Cases,  1037)  ;  Holden  v.  Hardy  ( 1898, 169  U.  S.  366 ;  McClain's 
Cases,  929) ;  Lockner  v.  New  York  (1905,  198  U.  S.  45  ;  McClain's  Cases, 
2d  ed.,  1260);  McLean  v.  Arkansas  (1908,  211  U.  S.  539);  Barbiery.  Con- 
nolly (1885,  113  U.  S.  27  ;  McClain's  Cases,  925  ;  Thayer's  Cases,  623). 

256.    Constitutional  Provisions  as  to  Due  Process  of  Law. 

The  early  state  constitutions,  as  well  as  various  documents  in 
which  the  colonists  set  forth  their  claims  to  the  enjoyment  of 
privileges  vouchsafed  to  British  subjects  by  the  common  law 
of  England,  make  reference  to  due  process  of  law  as  a  valuable 
safeguard  of  personal  liberty  and  property  rights.  This  phrase 
is  said  to  be  and  no  doubt  is  used  as  an  equivalent  of  the 
guaranty  given  by  King  John  in  Magna  Charta   (a.  d.  12 15; 

344 


§  257]  What  is  Due  Process.  345 

reaffirmed  by  many  succeeding  sovereigns)  that  "  No  freeman 
can  be  taken  or  imprisoned  or  disseized  or  outlawed  or  in  any 
other  manner  injured,  neither  will  we  proceed  against  him, 
unless  by  the  lawful  judgment  of  his  peers  or  by  the  law  of  the 
land."  In  short  "due  process  of  law"  is  construed  as  equiva- 
lent to  "  the  law  of  the  land.*'  In  the  federal  constitution  it  is 
declared  that  no  person  "  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law  ''  (Amend.  V)  and  that 
no  state  shall  "  deprive  any  person  of  Hfe,  liberty,  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws  "  (Amend.  XIV). 
These  limitations  on  the  power  of  the  federal  and  state  govern- 
ments respectively  are  of  very  wide  and  important  appHcation. 
They  have  already  been  frequently  referred  to  in  previous 
chapters  and  it  only  remains  now  to  indicate  their  general 
nature  and  scope. 

It  is  now  well  settled  that  the  Fourteenth  Amendment 
guarantees  the  civil  rights  of  all  persons  as  against  infringement 
by  state  action;  while,  on  the  other  hand,  it  is  equally  well 
settled  that  the  civil  rights  of  the  inhabitants  of  the  states  are 
within  the  protection  of  the  state  constitutions  and  laws,  and 
that  the  federal  guarantee  applies  only  to  infringements  by  the 
constitution  or  laws  of  a  state  or  under  the  authority  of  the  state 
acting  through  its  government  or  officers.  The  provisions  of 
the  Fifth  Amendment  are  of  course  applicable  as  limitations 
only  on  the  exercise  of  power  by  the  federal  government. 

257.    "What  is  Due  Process  of  La'w. 

It  is  very  difficult  to  give  any  concise  definition  of  what  is 
meant  by  due  process  of  law,  but  it  has  been  well  said  that  by 
the  use  of  these  words  in  constitutional  guaranties  the  intent  is 
"  to  secure  the  individual  from  the  arbitrary  exercise  of  the 
powers  of  government  unrestrained  by  the  established  principles 
of  private  right  and  distributive  justice  "  (per  Johnson,  Bank 
of  Colu?nbia  v.  Okely).  To  determine  what  are  the  established 
principles  of  private  right  and  distributive  Justice  recognized  in 
the  United  States  we  must  have  reference  to  the  common  law 


346 


Due  Process  of  Law.  [§  257 


as  it  was  in  force  at  the  time  the  colonies  became  independent 
of  Great  Britain. 

By  due  process  of  law  is  not  meant  in  all  cases  judicial  pro- 
ceedings, for  private  property  is  frequently  taken  from  its 
owner  according  to  well-recognized  methods  and  for  legitimate 
purposes  without  the  judgment  of  a  court.  Thus  for  non-pay- 
ment of  public  taxes  property  may  be  sold  under  state  author- 
ity, and  the  owner  thereby  deprived  of  it.  In  such  cases  due 
process  of  law  consists  of  the  regular  proceedings  provided  for 
the  assessment  and  collection  of  taxes.  (See  above,  §  74.) 
Likewise,  property  may  be  taken  for  public  use  without  the 
consent  of  the  owner  on  compensation  being  made,  and  no 
procedure  in  a  court  is  essential  to  determine  the  propriety  of 
the  taking  or  the  amount  of  the  compensation.  (See  above, 
§  6^.)  Again  in  the  exercise  of  its  police  power  the  state  may 
under  some  emergencies  and  for  the  public  welfare  destroy 
private  property  without  the  consent  of  the  owner,  although  the 
necessity  for  such  destruction  has  not  been  determined  in  any 
judicial  proceeding.  (See  above,  §  48.)  In  each  of  these  cases 
the  courts  may  be  called  upon  ultimately  to  decide  whether  the 
taking  or  destruction  of  the  property  was  in  accordance  with 
due  process  of  law,  but  it  is  evident  that  the  essential  pro- 
cedure constituting  due  process  does  not  necessarily  involve 
any  action  on  the  part  of  a  judicial  tribunal. 

Although  in  the  clause  from  Magna  Charta  above  quoted  and 
in  the  provisions  relating  to  due  process  of  law  found  in  state 
constitutions,  jury  trial  is  referred  to  in  the  same  connection,  it 
is  not  to  be  inferred  that  even  when  due  process  of  law  involves 
a  judicial  trial  it  is  essential  that  such  trial  be  by  jury.  Other 
forms  of  trial  are  recognized  by  the  common  law  and,  except 
when  jury  trial  is  guaranteed,  the  form  of  trial  may  be  deter- 
mined by  the  law.  Thus  notwithstanding  the  general  guaranty 
of  jury  trial  where  personal  liberty  is  in  question,  courts  may  in 
some  cases  deprive  a  person  of  his  liberty  otherwise  than  by 
a  jury  trial,  without  violating  the  guaranty  of  due  process. 
Courts,  and  for  that  matter  legislative  bodies  also,  may  punish 
persons  for  contempt  without  a  jury  trial  {Eilenbecker  v.  Ply- 


§  258]  Effect  of  Legislation.  347 

month  County  and  Ifi  re  Debs).  Likewise  by  special  proceed- 
ings and  for  proper  cause  an  attorney  may  be  disbarred  and 
the  right  to  earn  his  living  by  the  practice  of  his  profession  cut 
off  without  a  jury  trial  {Ex  parte  Wall).  Again  in  military 
tribunals  trial  by  jury  is  not  provided  for  according  to  the  forms 
of  the  common  law,  although  such  tribunals  may  punish  viola- 
tions of  the  military  law  by  death  or  imprisonment. 

Due  process  of  law  does  not  necessarily  require  indictment 
by  grand  jury  (see  above,  §  229),  nor  trial  by  jury  in  civil  suits 
at  law.  (See  above,  §  253.)  Other  methods  of  judicial  trial 
may  be  substituted,  except,  of  course,  in  so  far  as  jury  trial  is 
required  by  constitutional  provision. 

In  fact,  the  phrase  "judgment  of  his  peers"  which  is  used  in 
Magna  Charta  in  connection  with  the  words  "  law  of  the  land," 
and  which  is  usually  interpreted  as  meaning  jury  trial,  did  not 
have  that  meaning  when  it  was  first  used  {Hurtado  v.  Cal- 
ifornia), for  a  jury  trial  as  we  now  know  it  was  not  then  in 
existence.  But  a  discussion  of  the  guaranty  in  Magna  Charta 
would  not  be  profitable.  The  essential  of  due  process  of  law 
in  judicial  proceedings  is  that  there  be  some  regular,  orderly 
method  provided  for  the  determination  of  the  case  presented 
to  the  court  for  decision.  "  Due  process  of  law,"  says  Judge 
Cooley  in  his  Constitutional  Limitations,  "  in  each  particular 
case  means  such  an  exertion  of  the  powers  of  the  government 
as  the  settled  maxims  of  law  permit  and  sanction,  and  under 
such  safeguards  for  the  protection  of  individual  rights  as  these 
maxims  prescribe  for  the  class  of  cases  to  which  the  one  in 
question  belongs." 

258.    Effect  of  Legislation  on  Due  Process  of  Law. 

It  must  not  be  understood,  however,  that  whatever  is  enacted 
by  the  legislative  department  is  a  part  of  the  law  of  the  land  in 
such  sense  that  compliance  therewith  necessarily  constitutes  the 
due  process  of  law  which  is  guaranteed  in  the  constitution. 
The  law-making  power  may  modify  the  common  law,  may 
repeal  its  rules  as  applicable  to  a  particular  subject  and  sub- 
stitute other  rules,  or  it  may  add  to  the  common  law  such  rules 


348 


Due  Process  of  Law.  [§  258 


as  to  personal  and  property  rights  not  recognized  in  the 
common  law  as  it  sees  fit,  but  it  cannot  in  so  doing  override 
the  general  restrictions  found  in  the  common  law  for  the  pro- 
tection of  personal  and  property  rights,  nor  deprive  the  indi- 
vidual of  beneficial  remedies  for  the  maintenance  of  such  rights 
and  for  securing  redress  for  their  breach.  The  language  of 
Webster  in  his  argument  in  the  Dartmouth  College  Case  has 
frequently  been  quoted  as  a  sound  exposition  of  the  true  prin- 
ciple to  be  borne  in  mind  in  determining  whether  statutory 
provisions  are  open  to  the  objection  that  they  deprive  a  person 
of  his  property  without  due  process  of  law  :  "  By  the  law  of  the 
land  is  most  clearly  intended  the  general  law ;  a  law  which 
hears  before  it  condemns,  which  proceeds  upon  inquiry,  and 
renders  judgment  only  after  trial.  The  meaning  is,  that  every 
citizen  shall  hold  his  life,  liberty,  property,  and  immunities 
under  the  protection  of  the  general  rules  which  govern  society. 
Everything  which  may  pass  under  the  form  of  an  enactment  is 
not,  therefore,  to  be  considered  the  law  of  the  land.  If  this 
were  so,  acts  of  attainder,  bills  of  pains  and  penalties,  acts  of 
confiscation,  acts  reversing  judgments,  and  acts  directly  trans- 
ferring one  man's  estate  to  another,  legislative  judgments,  de- 
crees, and  forfeitures,  in  all  possible  forms,  would  be  the  law 
of  the  land.  Such  a  strange  construction  would  render  consti- 
tutional provisions  of  the  highest  importance  completely  in- 
operative and  void.  It  would  tend  directly  to  establish  the 
union  of  all  powers  in  the  legislature.  There  would  be  no 
general  permanent  law  for  courts  to  administer  or  for  men  to 
live  under.  The  administration  of  justice  would  be  an  empty 
form  and  idle  ceremony.  Judges  would  sit  to  execute  legisla- 
tive judgments  and  decrees,  not  to  declare  the  law  or  to 
administer  the  justice  of  the  country.''  Methods  of  procedure 
in  courts  may  be  changed,  new  rights  may  be  given,  privileges 
not  essential  to  the  enjoyment  of  life,  liberty,  and  property  or 
which  are  not  inconsistent  with  the  general  public  welfare  may 
be  taken  away,  but  the  substantial  protection  afforded  by 
common-law  rules  of  procedure  for  the  administration  of  justice 
cannot  be  abrogated. 


§  2  59]  Persons  Entitled  to.  349 

259.  "What  Persons  are  Entitled  to  Due  Process  of  Law. 

It  is  to  be  noticed  as  of  great  significance  that  the  Fourteenth 
Amendment  declares  that  no  state  shall  deprive  "  any  person  " 
of  life,  liberty,  or  property,  etc.,  and  the  same  form  of  expression 
is  used  with  reference  to  the  equal  protection  of  the  laws.  No 
doubt  privileges  and  immunities  are  and  may  be  recognized  or 
conferred  as  incident  to  citizenship  which  are  not  recognized 
or  conferred  as  to  aliens,  but  it  is  now  well  settled  that  the 
fundamental  guaranties  of  civil  rights  relate  to  persons  who  are 
subject  to  the  law  of  the  state,  regardless  of  their  condition.  As 
has  already  been  said  the  Fourteenth  Amendment  was  adopted 
on  account  of  a  fear  that  the  negroes  recently  emancipated 
from  slavery,  and  who  prior  to  the  adoption  of  that  amendment 
had  not  been  uniformly  regarded  as  citizens,  would  be  deprived 
in  some  of  the  states  of  their  civil  rights.  But  the  language  of 
the  amendment  goes  further  than  to  make  the  negroes  citizens 
and  guarantee  to  them  the  privileges  and  immunities  of  citizen- 
ship. It  is  unlimited  in  its  scope  and  has  been  so  interpreted. 
(See  above,  §  21.)  Thus  Chinese  subjects  within  the  limits  of 
a  state,  although  they  are  not  citizens  of  the  state  nor  of  the 
United  States,  and  under  the  provisions  of  the  present  naturali- 
zation laws  cannot  become  citizens,  are,  nevertheless,  entitled  to 
full  protection  of  their  civil  rights  (  Yick  Wo  v.  Hopkins). 

The  question  has  arisen  whether  a  corporation  is  a  person 
within  the  language  of  the  Fourteenth  Amendment.  A  cor- 
poration is  undoubtedly  entitled  to  the  protection  of  property 
rights  which  it  has  acquired  under  authority  of  law.  To  deny 
it  such  protection  would  be  to  deprive  the  members  of  the 
corporation  of  their  property  rights,  and  it  is  therefore  properly 
said  that  a  corporation,  though  only  an  artificial  person,  is  a 
person  within  the  language  of  the  amendment  {Pembina  Mining 
Co.  v.  Pefinsylvania).  In  this  respect  the  distinction  between 
"  person  "  and  "  citizen "  is  recognized,  for  corporations  are 
not  and  cannot  be  citizens  either  of  a  state  or  of  the  United 
States.  In  construing  the  clause  of  the  judiciary  article  confer- 
ring jurisdiction  on  the  federal  courts  in  controversies  between 


350  Due  Process  of  Law.  [§  260 

citizens  of  different  states  (see  above,  §  152)  corporations  are 
by  fiction  said  to  be  citizens  of  their  respective  states ;  but  this 
conclusion  was  reached  by  regarding  the  corporation  as  com- 
posed of  individuals  presumed  to  be  citizens  of  the  state  in 
which  the  corporation  is  organized.  A  state  may  discriminate 
against  corporations  organized  in  another  state,  although  it 
could  not  thus  discriminate  against  persons  who  are  citizens 
of  another  state.     (See  above,  §  190.) 

260.  "What  are  Property  Rights  Protected  by  Due  Process 
of  La-w. 

Whatever  has  been  generally  regarded  as  property,  tangible 
or  intangible,  corporeal  or  incorporeal,  in  possession  or  in  ex- 
pectancy, is  regarded  as  property  within  the  meaning  of  the 
constitutional  provisions ;  and  whatever  rights  to  such  property 
have  been  generally  recognized  by  the  system  of  law  prevailing 
in  the  states  of  the  Union  are  such  rights  as  are  thereby  pro- 
tected.    (See  below,  ch.  xlvi.) 

Illustrations  of  the  protection  afforded  to  private  property  by 
the  limitation  as  to  due  process  of  law  might  be  multiplied,  such 
as  that  the  legislature  cannot  by  statute  transfer  the  property 
of  one  person  to  another  {Missouri  Pacific  R.  Co.  v.  Ne- 
braska)^ nor  determine  the  rightfulness  of  one  person's  claim 
to  property  as  against  another,  nor  compel  one  person  to  pay 
damages  to  another  for  injuries  to  person  or  property  claimed 
to  have  been  suffered  through  a  wrongful  act.  In  all  cases 
involving  private  rights  and  remedies  the  determination  must 
be  by  judicial  proceedings.  For  the  determination  of  rights  of 
individuals  a  judicial  proceeding  involves  the  necessity  of  juris- 
diction of  the  parties  and  of  the  subject-matter  {Cumiius  v.  Read- 
ing District;  see  above,  ch.  xxiv).  Jurisdiction  of  the  parties 
is  acquired  by  the  plaintiff  or  complainant  asking  judicial  relief, 
presenting  his  case  to  a  court,  and  by  summons  or  notice  of 
some  kind  as  authorized  by  law  giving  the  opposite  party  oppor- 
tunity to  appear  in  the  court  and  make  his  defence.  As  the 
courts  of  the  state  can  have  no  jurisdiction  over  persons  outside 
of  the  limits  of  the  state   unless  such  persons  come  into  the 


§  26 1]  What  Property  Protected.  351 

court  voluntarily  and  submit  themselves  to  its  jurisdiction,  this 
summons  or  notice  must  be  served  in  the  state.  It  is  thus 
that  a  court  having  by  law  the  right  to  determine  cases  of  the 
character  brought  before  it,  that  is,  having  jurisdiction  of  the 
subject-matter,  may  acquire  jurisdiction  of  the  person  {Pefinoyer 
V.  Neff).  But  there  are  classes  of  cases  in  which  a  court  may 
proceed  to  render  an  adjudication  binding  upon  property, 
although  the  owner  of  the  property  is  not  served  with  notice 
within  the  state.  Such  proceedings  are  called  proceedings  in 
rem.  Thus,  one  who  has  a  mortgage  or  mechanics'  lien  on  prop- 
erty may  subject  it  to  the  payment  of  his  claim,  although  per- 
sonal jurisdiction  over  the  debtor  has  not  been  secured;  or 
property  within  the  state  belonging  to  a  non-resident  may  be 
subjected  by  his  creditors  to  the  payment  of  his  claims  by 
means  of  proceedings  by  attachment ;  or  the  title  to  property 
may  be  determined  and  quieted  although  the  adverse  claimant 
is  not  served  with  personal  notice  by  reason  of  his  absence 
from  the  state  {Arndt  v.  Gfiggs) .  But  in  all  such  cases  the 
court  must  limit  itself  to  giving  redress  with  reference  to 
the  property  which  is  within  the  jurisdiction  of  the  court ;  it 
cannot  render  a  personal  judgment  against  one  who  is  not  a 
party  to  the  proceeding,  either  by  proper  servance  or  by  vol- 
untary appearance. 

261.   Freedom  of  Contract  and  of  Labor. 

The  right  of  personal  liberty  and  the  right  to  acquire  and 
hold  property  which  are  protected  by  the  general  guaranty  of 
due  process  of  law  involve  the  right  to  make  contracts  and  to 
enforce  remedies  for  breach  of  contract.  On  the  other  hand, 
the  legislature  in  the  exercise  of  its  police  power  for  the  pro- 
tection of  infants,  persons  not  of  sound  mind,  and  in  general 
persons  who  are  not  capable  of  protecting  their  own  interests 
may  regulate  the  making  and  enforcement  of  contracts  by  and 
against  such  persons.  The  question  may  arise,  therefore, 
whether  a  statutory  regulation  which  restricts  the  making  or 
enforcement  of  certain  classes  of  contracts  is  a  reasonable  ex- 
ercise of  the  duty  to  afford  protection  to  persons  incapable  of 


352  Due  Process  of  Law.  [§262 

guarding  their  own  interests.  Thus  the  employment  of 
children  in  factories  beyond  a  specified  number  of  hours 
per  day  of  labor  may  be  prohibited.  Moreover,  certain 
kinds  of  labor  may  be  injurious  except  under  special  re- 
strictions; and  the  legislature  may  therefore  provide  that 
not  more  than  a  specified  number  of  hours  of  labor  per  day 
shall  be  permitted  to  be  performed  by  any  person  in  such 
occupations  as  mining  (^  No  Men  v.  Hardy).  As  tending 
to  prevent  fraud  the  legislature  may  prohibit  contracts  re- 
quiring payment  of  miners'  wages  to  be  made  on  the  basis 
of  the  amount  of  screened  coal  produced  ( McLean  v.  Ar- 
kansas). These  matters  are  properly  subject  to  control  in 
the  exercise  of  the  police  power  (see  above,  §  48) ;  but  on 
the  other  hand,  freedom  to  labor  or  to  contract  with  refer- 
ence to  labor  not  peculiarly  injurious,  to  be  performed  by 
persons  competent  to  consult  their  own  interests,  cannot 
be  properly  restricted  by  legislation  {^Lockner  v.  New  York). 
The  general  principle  is  that  each  person  should  be  allowed  to 
exercise  his  own  discretion  as  to  his  private  affairs,  subject 
only  to  such  restrictions  as  are  reasonably  within  the  scope  of 
the  police  power. 

262.    Equal  Protection  of  the  La'ws. 

The  principle  of  equality  of  all  men  before  the  law  (see 
above,  §  204),  which  is  fundamental  in  our  constitutional  sys- 
tem, necessarily  involves  all  that  is  especially  guaranteed  by  the 
provisions  of  the  Fourteenth  Amendment  with  reference  to  the 
equal  protection  of  the  laws,  and  the  significance  of  that  pro- 
vision is  that  it  gives  to  this  guaranty  the  sanction  of  the  fed- 
eral constitution  and  makes  it  binding  on  the  states  so  that 
the  persons  who  are  entitled  to  the  equal  protection  of  the  law 
are  not  left  dependent  upon  the  guaranties  found  in  the  state 
constitutions  and  the  enforcement  of  these  guaranties  by  the 
state  courts,  but  may  rely  upon  the  federal  constitution  and 
the  protection  of  the  federal  courts.  It  is  to  be  noticed,  how- 
ever, as  has  already  been  suggested  with  reference  to  due 
process  of  law,  that  the  limitation  of  Amendment  XIV  is  upon 


§  262]  Equal  Protection.  353 

state  action  and  not  upon  individual  action.  As  between  in- 
dividuals the  sovereign  authority  for  the  protection  of  rights  is 
in  the  state  governments ;  it  is  only  as  against  the  action  of 
some  department  of  a  state  government  or  its  officers  in  the 
exercise  of  public  authority  that  equality  before  the  law  is 
guaranteed  by  the  federal  constitution. 

The  equal  protection  of  the  laws  does  not  require  that  all 
laws  be  equally  applicable  to  all  persons  and  all  conditions.  In 
the  chapter  on  the  police  power  (see  above,  §  48)  it  has  been 
already  pointed  out  that  the  necessity  of  regulation  may  exist 
as  to  one  class  of  persons  rather  than  another  and  as  to  some 
conditions  rather  than  others.  A  law  may  properly  be  passed 
regulating  innkeepers  which  does  not  apply  to  those  who  keep 
boarding-houses  or  restaurants ;  or  applying  to  public  carriers 
of  passengers  or  goods,  and  not  to  private  carriers.  Restrictions 
on  sales  of  intoxicating  liquors  may  be  imposed  which  are  not 
applicable  to  sales  of  other  goods.  Particular  occupations, 
although  they  may  not  be  charged  with  a  public  interest,  such 
as  those  of  peddlers,  pawnbrokers,  or  dealers  in  explosives,  may 
be  especially  regulated  in  the  public  interest.  Persons  pur- 
suing certain  professions  such  as  the  practice  of  law,  medicine, 
and  pharmacy  may  be  required  to  have  certain  qualifications. 
The  requirement  of  the  equal  protection  of  the  law  is  that  in 
imposing  regulations  on  one  class  of  persons  which  are  not 
imposed  on  others  the  distinction  must  be  founded  on  some 
reasonable  ground  of  public  policy  or  general  welfare  and  that 
it  be  not  arbitrary  or  oppressive.  The  ground  of  distinction 
must  have  some  foundation  in  reason  according  to  general 
common  sense  and  good  judgment,  and  the  laws  applicable  to 
a  particular  class  must  not  bear  more  severely  upon  that  class 
than  the  reason  which  justifies  that  distinction  fairly  warrants. 

It  rests  primarily  with  the  legislative  power  to  determine  what 
classification  and  distinctions  shall  be  made  and  what  restric- 
tions shall  be  imposed;  but  it  is  for  the  courts  to  determine 
ultimately  whether  there  is  a  fair  and  reasonable  ground  for 
such  classification  and  distinctions  and  whether  the  restrictions 
fairly  represent  the  requirements  of  sound  public  policy.     The 

23 


354  Due  Process  of  Law.  [§  262 

courts  will,  however,  only  interfere  when  the  legislative  depart- 
ment has  clearly  and  plainly  exceeded  its  authority.  For 
instance,  it  has  been  held  that  a  regulation  requiring  that  the 
laundry  business  within  the  thickly  settled  portions  of  a  city 
shall  not  be  conducted  in  wooden  buildings  is  valid,  because 
such  a  regulation  is  for  the  protection  of  the  people  from  the 
danger  of  the  spread  of  fire  from  such  establishments  (^Barbier 
V.  Connolly) i  but  that  the  restriction  of  the  laundry  business 
to  certain  classes  of  persons  is  unconstitutional  because  it  is 
not  founded  upon  any  reasonable  ground  as  to  the  quahfication 
of  different  classes  of  persons  to  pursue  that  particular  business 
{Yick  Wo  w.  Hopkins).  Illustrations  might  be  multiplied  but 
without  further  amplification  these  suggestions  will  indicate  the 
principles  to  be  observed  in  regard  to  class  legislation.  It  is 
always  to  be  borne  in  mind  that  primarily  and  fundamentally 
each  person  is  to  be  allowed  to  pursue  that  calling  or  line  of 
business  which  he  desires  to  follow  and  shall  be  prevented  from 
doing  so  only  for  some  sound  reason  of  public  policy. 


CHAPTER   XLV. 

IMPAIRMENT   OF  CONTRACT   RIGHTS. 

263.    References. 

J.  Story,  Constitution^  §§  1374-1400;  T.  M.  Cooley,  Constitutional  Limi- 
tations, **  273-294 ;  J.  I.  C.  Hare,  Constitutional  Law,  chs.  xxvi-xxviii ; 
J.  R.  Tucker,  Constitution,  828-840;  J.  N.  Pomeroy,  Constitutional  LaWy 
§§  538-627  ;  The  Federalist,  No.  44;  T.  M.  Cooley,  Constitutional  Law,  ch. 
xvi,  §  I  ;  H.  C.  Black,  Constitutional  Law,  ch.  xxi ;  Hans  v.  Louisiana 
(1890,  134  U.  S.  I ;  McClain's  Cases,  702  ;  Thayer's  Cases,  293)  ;  McGahey 
y.  Virginia  {1890,  135  U.  S.  662;  McClain's  Cases,  looi ;  Thayer's  Cases, 
1664) ;  Woodruff \.  Trapnall {\%^o,  10  Howard,  r9o;  18  Curtis'  Decisions, 
358  ;  McClain's  Cases,  998) ;  Sturges  v.  Crowttinshield  (1819,  4  Wheaton, 
117;  4  Curtis' Decisions,  362;  Thayer's  Cases,  1582 ;  Marshall's  Deci- 
sions, Dillon's  ed.,  226);  Ogden  v.  Saiinders  (1827,  12  Wheaton,  213; 
7  Curtis'  Decisions,  132 ;  Thayer's  Cases,  1590;  Marshall's  Decisions, 
Dillon's  ed.,  549);  Legal  Tender  Case,  Juillard  v.  Greenynan  (1884,  1 10 
U.  S.  421  ;  McClain's  Cases,  442  ;  Thayer's  Cases,  2255)  ;  Fletcher  v. 
Peck  (1810,  6  Cranch,  87;  2  Curtis'  Decisions,  328;  Thayer's  Cases,  114J 
Marshall's  Decisions,  Dillon's  ed.,  194) ;  Louisiana  v.  Mayor  of  New  Or- 
leans (1883,  109  U.  S.  285;  McClain's  Cases,  1047) ;  Morley  v.  Lake  Shore 
<Sr»  Michigan  Southern  Railway  Co.  (1892,  146  U.  S.  162  ;  McClain's  Cases, 
1023;  Thayer's  Cases,  1555)  ;  Mobile  Transportatiori  Co.  v.  Mobile  (1903, 
187  U.  S.  479  ;  23  Sup.  Court  Reporter,  170) ;  Salt  Company  v.  East  Sagi- 
naw (1871,  13  Wallace,  373;  McClain's  Cases,  1003);  Fisk  v.  Jefferson 
Police  Jury  (1885,  116  U.  S.  131;  McClain's  Cases,  1005);  Trustees  of 
Dartmouth  College  v.  Woodward  (1819,  4  Wheaton,  518  ;  4  Curtis'  Deci- 
sions, 463  ;  McClain's  Cases,  1006;  Thayer's  Cases,  1564;  Marshall's  De- 
cisions, Dillon's  ed.,  299) ;  The  Binghamton  Bridge  (1865,  3  Wallace,  51  ; 
McClain's  Cases,  loii;  Thayer's  Cases,  1753);  L)ouglas  v.  Kentucky  (1897, 
168  U.  S.  488  ;  McClain's  Cases,  1016) ;  Stone  v.  Mississippi  ( 1879,  loi  U.  S. 
814;  Thayer's  Cases,  177 1);  Beer  Company  v.  Massachusetts  (1877,  97 
U.  S.  25  ;  McClain's  Cases,  1014;  Thayer's  Cases,  757) ;  Central  Bridge 
Corporation  v.  I^owell  (Mass.  1855  ;  4  Gray,  474  ;  McClain's  Cases,  1052) ; 
Pennsylvania  College  Cases  (1871,  13  Wallace,  190 ;  McClain's  Cases,  1013  ; 
Thayer's  Cases,  1716) ;  East  Hartford  \.  Hartford  Bridge  Company  (1850, 
10  Howard,  511  ;  18  Curtis'  Decisions,  483;  McClain's  Cases,  1021). 

355 


356  Impairment  of  Contracts.  [§  264 

264.    Constitutional  Provisions  as  to  Contracts. 

In  state  constitutions  there  is  usually  a  provision  that  no  law 
shall  be  passed  impairing  the  obligation  of  contracts ;  and  in 
the  federal  constitution  (Art.  I,  §  10,  H  i)  this  prohibition  is 
expressly  imposed  on  the  states.  There  is  nothing  in  the  federal 
constitution,  however,  prohibiting  the  enactment  of  laws  by 
the  federal  government  impairing  the  obligation  of  contracts 
save  that  in  Article  VI  is  found  the  provision  that  "  All  debts 
contracted  and  engagements  entered  into  before  the  adoption 
of  this  constitution  shall  be  as  valid  against  the  United  States 
under  this  constitution  as  under  the  Confederation."  The 
object  of  this  provision  was  undoubtedly  to  guard  against  any 
repudiation  by  the  federal  government,  organized  under  the 
constitution,  of  treaties  made  or  debts  contracted  by  the  govern- 
ment under  the  Articles  of  Confederation ;  but  as  the  United 
States  cannot  be  sued  (see  above,  §  149)  there  could  be  no 
legal  redress  for  the  violation  of  this  provision.  As  hkevvise 
the  states  cannot  be  sued  by  individuals  (see  above,  §  151) 
there  is  no  direct  legal  remedy  against  a  state  for  the  impair- 
ment of  its  own  obligations.  Thus,  if  a  state  should  provide 
for  the  issuance  of  bonds  and  direct  their  payment  when  due 
out  of  the  state  treasury,  a  subsequent  repeal  of  the  statute 
authorizing  their  payment  would  be  an  impairment  of  the  obli- 
gation of  the  contract,  but  the  creditor  would  be  without  redress 
as  against  the  state  {JIa?is  v.  Louisiafia).  However,  if  the 
statute  providing  for  the  issuance  of  the  bonds  should  also  pro- 
vide that  such  bonds  and  the  interest  coupons  thereon  were 
receivable  in  payment  of  state  taxes,  no  subsequent  statute  could 
take  away  from  the  bonds  or  coupons  their  value  or  availability 
for  that  purpose ;  and  the  holder  would  be  entitled  to  tender 
them  in  payment  of  his  taxes,  and  the  officers  of  the  state  would 
be  bound  to  receive  them,  notwithstanding  the  repeal.  And  if 
a  tax  payer  had  tendered  such  bonds  in  payment  of  his  taxes 
he  might  by  proceedings  restrain  the  officers  of  the  state 
from  any  attempt  to  enforce  such  taxes  against  his  property 
{^McGahey  v.    Virgifiia).     Likewise  if  a  state  charters  a  bank 


§  265]  Constitutional  Provisions.  357 

with  the  provision  that  the  notes  of  such  bank  shall  be  receiv- 
able in  payment  of  debts  to  the  state,  it  cannot  afterwards  by 
legislation  deprive  such  notes  of  their  value  for  such  purpose 
{Woodruffs.  TrapnalT). 

It  is,  however,  with  reference  to  private  contracts  that  the 
constitutional  guaranty  is  usually  applied,  and  the  prohibition 
is  construed  as  preventing  the  state  from  passing  any  law  im- 
pairing the  force  or  obligation  as  between  individuals  of  con- 
tracts already  made.  What  is  prohibited  with  reference  to  the 
impairment  of  private  contracts  is  a  retroactive  law  having  the 
effect  to  render  any  valid  contract  previously  made  invalid,  or 
to  interfere  with  the  assertion  of  substantial  rights  acquired 
under  such  contract,  or  to  take  away  the  substantial  remedies 
for  their  enforcement. 


265.   Bankruptcy  and  Legal  Tender  Statutes. 

The  fact  that  states  are  prohibited  from  impairing  contracts 
while  no  such  provision  is  imposed  on  the  federal  government 
is  significant  when  there  is  occasion  to  consider  the  vaUdity  of 
state  statutes  as  to  discharge  in  bankruptcy  or  payment  in 
legal  tender  currency.  It  is  a  common  provision  in  laws  re- 
lating to  bankniptcy  that  after  the  application  of  all  his  prop- 
erty to  the  payment  of  his  debts  the  bankrupt  is  discharged 
from  further  liability  (see  above,  §  loi),  but  a  state  bank- 
ruptcy statute  with  these  provisions  could  not  be  made  appli- 
cable to  debts  already  created  by  contract,  for  to  do  so  would 
be  to  deprive  the  creditor  of  legal  redress  for  the  violation  of 
such  contract  by  one  who  should  subsequently  be  declared  a 
bankrupt  and  discharged  {Stitrges  v.  Crozvninshield  and  Ogden 
V.  Saufidefs) .  There  is  no  such  limitation  on  the  federal  gov- 
ernment, and  as  Congress  is  expressly  given  authority  to  pass 
general  laws  on  the  subject  of  bankruptcy  (Art.  I,  §  8, 1[  4) 
a  discharge  under  a  federal  bankruptcy  law  will  relieve  the 
bankrupt  from  further  liability  on  debts  created  prior  to  the 
passage  of  such  a  statute  as  well  as  on  those  contracted  subse- 
quently.    For  similar  reasons,  although  a  state  may  perhaps 


358  Impairment  of  Contracts.  [§  266 

declare  what  currency  shall  be  receivable  as  a  legal  tender  in 
the  absence  of  any  federal  statute  on  the  subject,  it  cannot 
provide  for  the  extinguishment  of  indebtedness  by  payment 
in  some  form  of  money  not  recognized  by  the  law  of  the  state 
as  a  legal  tender  when  the  contract  was  made ;  but  Congress 
may  pass  legal  tender  statutes  applicable  to  debts  already  con- 
tracted as  well  as  those  subsequently  contracted  {Legal  Ten- 
der Case). 

266.  What  Kind  of  Contracts  are  Protected  from 
Impairment. 

There  is  a  legal  distinction  between  the  obligation  of  an  ex- 
ecutory contract,  that  is,  one  not  yet  performed  or  carried  out 
on  one  side  at  least,  and  an  executed  contract,  that  is,  one 
which  has  been  fully  carried  out  on  both  sides ;  and  it  has 
been  held  that  the  constitutional  guaranty  extends  to  con- 
tracts fully  executed  as  well  as  to  those  which  are  in  whole  or 
in  any  part  still  executory.  This  conclusion  was  reached  in  a 
case  in  which  a  state  attempted  to  impair  the  effect  of  a  con- 
veyance of  land  made  by  it  to  an  individual,  and  it  was  held 
that  as  a  conveyance  was  in  this  sense  a  contract,  the  title  ac- 
quired thereby  could  not  be  impaired  or  affected  by  the  state 
action  {^Fletcher  v.  Peck).  This  decision  was  made,  however, 
before  the  adoption  of  Amendment  XIV  which  prohibits  any 
state  from  depriving  any  person  of  his  property  without  due 
process  of  law.  Under  that  amendment  any  attempt  on  the 
part  of  the  state  by  statute  to  impair  a  property  right  would  be 
invalid,  and  since  the  adoption  of  that  amendment  the  deci- 
sion that  a  state  cannot  impair  the  rights  acquired  under  an 
executed  contract  is  probably  of  little  significance,  for  such 
rights  would  now  be  protected  as  property  rights. 

There  is  also  a  legal  distinction  between  express  and  implied 
contracts,  an  express  contract  being  one  which  is  definitely  en- 
tered into  between  parties  intending  to  contract  and  bind 
themselves  with  reference  to  each  other,  while  an  implied  con- 
tract is  nothing  more  than  an  obligation  arising  by  law  from 
the  acts  of  the  parties  without  any  expressed  intention  to  as- 


§  267]  What  Kind  of  Contracts.  359 

sume  such  obligation.  An  implied  contract  in  the  proper 
sense  of  the  term  is  one  the  obligation  of  which  a  party  is  pre- 
sumed to  have  assented  to  by  reason  of  his  conduct  and  his  re- 
lations to  the  other  party,  although  such  assent  is  not  indicated 
by  any  specific  words  or  acts,  and  the  constitutional  guaranty 
applies  to  such  implied  contracts  as  fully  and  effectively  as  to 
expressed  contracts.  The  term  "  imphed  contract  "  is  some- 
times, though  inaccurately,  used  to  cover  any  legal  obligation, 
such  as,  for  instance,  the  obligation  to  pay  damages  for  a  wrong 
done,  although  such  wrong  is  not  a  violation  of  any  duty  spe- 
cifically assumed  but  only  of  a  duty  generally  imposed  by  law. 
The  obligations  arising  from  implied  contracts  when  the  term 
is  used  in  the  sense  last  above  indicated  are  not  obligations 
which  are  within  the  guaranty  of  the  constitutional  provision 
as  to  impairing  the  obligation  of /:ontracts  {Louisiana  v.  Mayor 
of  New  Orleans), 

267.     Are  Judicial  Decisions  Contracts? 

The  judgment  of  a  court  is  sometimes  spoken  of  as  an  im- 
plied contract  and  if  the  judgment  is  for  the  performance  of  a 
duty  arising  by  contract  no  doubt  its  obligations  are  protected 
as  against  subsequent  legislation  by  the  constitutional  provision. 
A  judgment,  however,  may  also  be  for  the  enforcement  of  an 
obligation  not  arising  out  of  contract  but  by  general  law,  and 
in  such  cases  the  judgment  itself  cannot  be  said  to  be  a  con- 
tract {Morleyy.Lake  Shore,  etc.  R.  Co.).  In  applying  the  con- 
stitutional provision  as  to  impairment  of  the  obligation  of 
contracts  it  will  be  safe,  therefore,  to  say  that  so  far  as  contract 
obHgations  have  been  embodied  in  a  judgment  they  are  still 
protected  as  against  subsequent  legislation,  but  that  the  effect 
and  enforcement  of  a  judgment  rendered  with  reference  to 
obligations  not  arising  out  of  contract  may  be  regulated  by 
subsequent  legislation. 

A  rule  or  principle  of  law  established  by  judicial  decision  is 
for  some  purposes  as  much  a  part  of  the  law  as  a  rule  estab- 
lished by  statute ;  but  the  decision  of  a  court  is  primarily  the 
law  only  as  between  the  parties  to  the  case  decided,  and  with 


360  Impairment  of  Contracts.  [§  268 

reference  to  the  rights  involved  (see  above,  ch.  xxiv)  and 
while  such  a  decision  is  a  precedent,  and  will  usually  be  fol- 
lowed in  other  cases  in  the  same  jurisdiction,  it  is  not  binding 
on  the  court  in  other  cases  in  the  same  sense  that  a  statute  is 
binding  upon  the  court.  Therefore,  the  change  of  a  rule  of 
law  established  by  a  judicial  decision  is  not  the  impairment  of 
the  obligation  of  a  contract  (^Mobile  Trans.  Co.  v.  Mobile'), 
although  it  may  be  that  the  parties  making  the  contract  have 
assumed  that  the  first  decision  would  be  followed  in  other 
cases  and  therefore  are  prejudiced  by  the  subsequent  refusal  of 
the  court  to  follow  the  former  decision. 

268.    Statutory  Privileges  or  Exemptions. 

A  state  may  make  contracts  with  individuals,  and  such  con- 
tracts when  made  cannot  be  impaired,  although  as  already  in- 
dicated (see  above,  §  264)  there  may  be  no  remedy  afforded 
for  the  violation  of  the  contract  by  the  state.  But  a  general 
statute  does  not  constitute  a  contract,  and  one  who  relies  upon 
such  statute  must  do  so  with  the  understanding  that  the  legis- 
lature which  made  it  may  repeal  it  at  discretion.  A  state  can- 
not contract  away  or  impose  limitations  upon  its  general  power 
to  legislate  for  the  public  benefit.  Thus  if,  while  a  state  stat- 
ute is  in  force  providing  that  members  of  voluntary  fire  com- 
panies or  militia  organizations  shall  not  be  required  to  pay  poll 
taxes,  a  person  becomes  a  member  of  such  organization,  he  can- 
not afterwards  complain  if  the  general  statute  in  this  respect  is 
changed  and  the  privilege  is  withdrawn.  Statutory  exemptions 
from  taxation  are  therefore  repealable  (^Salt  Company  v.  East 
SaginaTv). 

Where  an  office  is  created  by  statute  it  may  be  abolished, 
and  the  incumbent  thereby  deprived  of  the  privileges  and 
emoluments  of  such  office  without  the  violation  of  any  con- 
tract right.  But  the  state  cannot  take  away  the  right  to  re- 
cover compensation  already  earned  by  performing  the  duties 
of  the  office,  for  here  the  right  is  already  accrued  and  has  be- 
come complete  as  a  property  right  of  which  the  officer  cannot 
be  deprived  without  due  process  of  law  {Fisk  v.  Jefferson  Po- 
lice Jury) . 


§  269]  Statutes  and  Charters.        -        361 

269.    Corporate  Charters. 

In  the  famous  Dartmouth  College  Case^  Trustees  of  Dart- 
mouth College  V.  Woodward,  it  was  held  after  elaborate  dis- 
cussion pro  and  con  that  a  charter  granted  to  a  corporation  by 
the  state  was  a  contract  between  the  state  and  the  corporation 
which  could  not  be  impaired  or  taken  away  by  subsequent 
legislation.  The  significance  of  this  decision,  which  has  been 
constantly  recognized  and  followed,  is  that  under  the  doctrine 
thus  announced  the  state  has  no  power  to  revoke  the  privi- 
leges granted  in  a  corporate  charter  nor  substantially  impair 
their  value.  Thus  if  a  charter  granted  to  a  corporation  pro- 
vides that  the  corporate  property  shall  be  exempt  from  taxa- 
tion, or  fixes  the  rate  or  method  of  its  taxation,  the  legislature 
cannot  by  subsequent  statute  make  different  provisions  as  to 
the  taxation  of  such  corporate  property.  But  it  will  not  be 
presumed  that  the  legislature  intended  in  granting  a  corporate 
charter  to  limit  its  general  legislative  power,  and  only  in  cases 
in  which  specific  provision  has  been  made  in  the  charter  will 
the  corporation  be  exempted  from  general  legislative  control. 

Moreover,  the  privileges  granted  by  a  corporate  charter  are 
no  more  sacred  than  other  property  or  contract  rights,  and 
in  the  exercise  of  its  police  power  the  legislature  may  make 
regulations  in  the  interest  of  the  public  health  and  welfare  ap- 
plicable to  the  business  which  the  corporation  is  authorized  to 
conduct  as  fully  as  to  the  business  of  an  individual,  the  general 
police  power  being  one  which  the  legislature  itself  cannot  im- 
pair nor  grant  away.  Therefore,  it  has  been  held  that  statutes 
prohibiting  lotteries  {Douglas  v.  Kentucky,  and  Stone  v.  Missis- 
sippi) or  regulating  the  manufacture  and  sale  of  intoxicating 
liquors  ( Beer  Company  v.  Massachusetts )  are  applicable  to 
corporations  already  created  by  the  state  for  the  purpose  of 
conducting  a  lottery  business  or  the  business  of  manufacturing 
and  selling  liquor. 

Moreover,  the  property  of  the  corporation,  including  its 
franchise,  which  is  regarded  as  a  part  of  its  property,  may  be 
taken  like  other  property  for  public  use  upon  compensation 


362  Impairment  of  Contracts.  [§269 

being  made,  and  therefore  it  is  held  that  a  corporation  author- 
ized to  conduct  a  toll  bridge  or  maintain  a  ferry  and  given  the 
exclusive  privilege  of  doing  so  within  certain  limits  may  have 
such  right  taken  away  from  it  for  the  public  benefit  in  order  to 
construct  a  free  bridge  or  public  ferry,  just  compensation  be- 
ing made  to  it  for  the  privilege  taken  {^Central  Bridge  Corpo- 
ration v.  City  of  Lowell). 

But  the  exemption  of  corporate  charters  from  legislative 
control  has  been  thought  to  be  against  public  interest,  and  in 
many  states  it  is  declared  by  constitutional  or  statutory  provi- 
sions that  all  corporate  charters  are  subject  to  repeal  or  modi- 
fication by  the  legislature  ;  and  in  such  states  charters  granted 
after  the  enactment  of  such  constitutional  or  statutory  provi- 
sions are  fully  subject  to  legislative  regulation  (^Pennsylvania 
College  Cases).  As  to  such  charters,  even  conceding  that  they 
are  contracts,  the  law  authorizing  their  regulation  or  repeal,  in 
existence  at  the  time  of  the  granting  of  the  charter,  constitutes 
a  part  of  the  contract,  and  the  exercise  of  the  power  to  revise 
or  repeal  is  not  an  impairment  of  the  obligation  of  the  contract, 
but  on  the  other  hand  is  an  exercise  of  a  power  expressly  or 
impliedly  reserved  in  the  contract. 

The  doctrine  that  a  corporate  charter  is  a  contract  applies 
only  to  charters  granted  to  private  corporations.  Public  cor- 
porations, such  as  cities,  school  districts,  and  institutions  created 
and  controlled  by  the  state  in  the  exercise  of  its  power  to  col- 
lect and  expend  money  for  public  purposes,  even  though  they 
may  be  created  by  charter,  are  not  regarded  as  having  any 
contract  rights,  and  the  charters  or  privileges  granted  to  them 
may  be  taken  away  or  modified  or  regulated  as  the  legislature 
may  see  fit  (^East  Hartford  v.  Hartford  Bridge  Co.). 


CHAPTER   XLVI. 

VESTED   RIGHTS   AND   RETROACTIVE   LEGISLATION. 

270.    References. 

J.  Story,  Constitution,  §§  1398,  1399;  T.  M.  Cooley,  Constitutional  Limi- 
tations, **  358-389 ;  J.  I.  C.  Hare,  Constitutional  Law,  ch.  xxxv  ;  H.  C. 
Black,  Constitutional  Law,  §§  215,285-289;  T.  M.  Cooley,  Constitutional 
Law  (3d  ed.),  350-361  ;  Campbell  \.  Holt  (1885, 115  U.  S.  620;  McClain's 
Cases,  1044) ;  Louisiana  v.  Mayor  of  New  Orleans  (1883,  109  U.  S.  285 ; 
McClain's  Cases,  1047) ;  Mitchells.  Clark  (1884,  no  U.  S. 633;  McClain's 
Cases,  1029;  Thayer's  Cases,  2402)  ;  Branson  v.  A'inzie  {iBi^^y  ^  Howard, 
311;  Thayer's  Cases,  1645);  McCracken  v.  Hayward  {I'^Atdt,  2  Howard, 
608;  15  Curtis'  Decisions,  228;  McClain's  Cases,  1026;  Thayer's  Cases, 
1 651);  Mattinglyy.  District  of  Columbia  {1878,  97  U.  S.  687;  McClain's 
Cases,  1043). 

271.    What  Rights  are  Vested. 

The  term  "vested  rights"  is  not  used  in  the  federal  consti- 
tution ( Campbell  v.  Holf)  nor  generally  in  state  constitutions ; 
but  it  is  frequently  employed  to  describe  those  rights  incident 
to  property  or  arising  out  of  contract  which  are  deemed  to  be 
beyond  impairment  by  subsequent  legislation,  under  the  usual 
clauses  as  to  due  process  of  law  and  the  impairment  of  the  ob- 
ligations of  contract.  For  instance,  the  right  of  a  prospective 
heir  to  inherit  property  is  subject  to  legislative  control,  so  that 
the  share  which  he  shall  take  or  the  conditions  under  which 
the  property  shall  pass  to  him  may  be  changed  by  statute 
passed  before  the  death  of  the  person  from  whom  he  is  to  in- 
herit ;  but  after  the  right  to  inherit  has  thus  become  fixed  by 
law,  no  statute  can  be  passed,  general  or  special,  which  takes 
away  or  restricts  the  interest  which  he  has  thus  already  ac- 
quired by  inheritance.  Likewise  the  share  which  a  wife  is  en- 
tided  to  have  out  of  her  husband's  property  in  the  event  that 
she  survives  him  may  be  diminished  or  increased  at  any  time 

363 


364  Vested  Rights.  [§  272 

before  the  husband's  death ;  but  after  his  death  her  right  to 
dower,  as  it  is  called,  is  fixed,  and  any  attempt  by  statute  to 
limit  it  would  be  unconstitutional  as  impairing  her  property 
rights. 

As  stated  in  the  preceding  chapter,  a  judgment  is  not, 
strictly  speaking,  a  contract,  neither  is  it  property.  If  it  rep- 
resents an  interest  in  property  or  a  right  accruing  under  con- 
tract, it  may  be  exempt  from  impairment  by  subsequent 
legislation ;  but  it  is  not  a  property  right  so  far  as  it  represents 
merely  a  remedy  which  might  or  might  not  be  afforded  as  the 
legislature  in  its  discretion  should  determine.  Thus  if  it  is 
provided  by  statute  that  cities  shall  be  liable  for  the  value  of 
property  destroyed  by  city  officers  to  prevent  the  spread  of  a 
fire,  such  a  statute  is  to  be  considered  as  granting  a  privilege 
only,  and  not  as  recognizing  a  property  right ;  and  if  the  stat- 
ute should  be  repealed,  no  person  whose  property  was  subse- 
quently destroyed  in  this  way  would  be  entitled  to  any 
compensation.  Therefore,  a  judgment  rendered  against  a 
state  for  damages  on  account  of  such  destruction  does  not 
represent  a  property  right,  and  the  legislature  in  its  discretion 
may  take  away  all  remedy  for  the  enforcement  of  such  a  judg- 
ment (^Louisiana  v.  Mayor  of  New  Orleans). 

272.    Retrospective  Legislation. 

The  state  and  federal  governments  are  prohibited  from  pass- 
ing ex  post  facto  laws.  These  prohibitions  found  in  the  state 
and  federal  constitutions  are  construed  as  referring  only  to  stat- 
utes relating  to  the  punishment  of  crime.  (See  above,  §  59.) 
Retrospective  legislation  in  general  is  not  expressly  prohibited, 
and  unless  it  impairs  vested  rights  of  property  or  of  contract  it 
is  not  unconstitutional.  Thus  the  legislature  may  by  subsequent 
statute  make  valid  the  recording  of  a  deed  which  by  reason  of 
some  informality  was  not  legally  recorded  ;  and  as  to  any  rights 
arising  after  the  passing  of  the  legalizing  act,  the  defective  record 
which  is  legalized  will  be  just  as  effectual  as  though  the  record- 
ing had  been  in  the  first  instance  regular  and  lawful ;    but  as 


§  272]  Retrospective  Legislation.  365 

to  any  person  who  has  acquired  an  interest  in  the  property  for 
a  good  consideration  which  would  be  impaired  by  treating  the 
defective  recording  as  lawful,  the  legalizing  statute  can  have 
no  effect. 

In  general  the  legislature  may  change  or  modify  the  rules  of 
procedure  without  impairing  vested  rights.  For  instance,  it 
may  extend  the  period  of  limitation  within  which  an  action 
may  be  brought,  and  the  person  against  whom  it  is  brought 
cannot  complain ;  or  it  may  shorten  the  period,  and  the  per- 
son entitled  to  bring  the  action  cannot  complain  if  a  reason- 
able time  has  been  left  to  him  within  which  to  bring  an  action 
for  the  assertion  of  his  rights  (^Mitchell  v.  Clark) .  The  gen- 
eral rule  is  this,  that  remedies  for  the  protection  of  property 
rights  or  for  enforcing  the  obligation  of  a  contract  may  be  mod- 
ified, even  as  to  property  already  existing  or  contracts  already 
made,  with  this  exception  that  the  legislature  cannot  by  such 
changes  or  modifications  of  statutory  provisions  take  away  all 
substantial  remedy  for  the  protection  of  property  or  the  en- 
forcement of  contract  obligations  and  leave  the  property  owner 
or  party  to  the  contract  without  any  substantial  remedy  {Bron- 
son  V.  Kinzie  and  McCracken  v.  Hay  ward). 

The  right  to  enact  retrospective  statutes  for  the  purpose  of 
legalizing  acts  already  done,  which  are  for  some  technical  de- 
fect in  the  method  of  procedure  invalid,  is  especially  recog- 
nized with  reference  to  the  organization  and  conduct  of 
municipal  corporations  (Mattingly  v.  District  of  Columbia). 
Here  no  private  rights  are  involved,  and  the  legislature  may 
legalize  proceedings  which  are  invalid  if  they  might  have  been 
valid  had  they  been  duly  authorized  in  the  first  place. 

The  retrospective  legislation,  therefore,  which  is  unconstitu- 
tional is  that  which  amounts  to  an  ex  post  facto  law  or  which 
impairs  some  vested  property  or  contract  right.  Legislation  is 
in  its  nature  prospective  and  not  retrospective,  and  even  a  so- 
called  retrospective  statute  is  in  effect  no  more  than  a  pro- 
spective statute,  applicable  to  conditions  which  have  arisen 
and  are  in  existence  when  the  statute  becomes  applicable. 


APPENDIX   OF   DOCUMENTS. 


APPENDIX   OF   DOCUMENTS. 


EXTRACTS  FROM  MAGNA  CHARTA  (1215). 

[The  original  charter  was  in  Latin.  The  translation  from  which  the 
following  extracts  are  taken  is  that  published  in  Sheldon  Amos'  The 
English  Constitution,  and  reprinted  in  Old  South  Leaflets^  No.  5,  with  ex- 
planatory notes.  A  translation  is  also  given  in  Mabel  Hill's  Liberty 
Documents^  with  Contempora?y  Exposition  and  Critical  Comments  drawn 
from  various  writers  {igoi) .  Subsequent  confirmations  of  the  Charter 
are  referred  to  in  a  note  at  the  end  of  the  extracts.] 

John,  by  the  Grace  of  God,  King  of  England,  Lord  of  Ireland, 
Duke  of  Normandy,  Aquitaine,  and  Count  of  Anjou,  to  his  Arch- 
bishops, Bishops,  Abbots,  Earls,  Barons,  Justiciaries,  Foresters, 
Sheriffs,  Governors,  Officers,  and  to  all  Bailiffs,  and  his  faithful 
subjects,  greeting.  Know  ye,  that  we,  in  the  presence  of  God, 
and  for  the  salvation  of  our  soul,  and  the  souls  of  all  our  ancestors 
and  heirs,  and  unto  the  honour  of  God  and  the  advancement  of 
Holy  Church,  and  amendment  of  our  Realm,  by  advice  of  .  .  .  and 
others,  our  liegemen,  have,  in  the  first  place,  granted  to  God,  and 
by  this  our  present  Charter  confirmed,  for  us  and  our  heirs  for 
ever:  — 

1.  That  the  Church  of  England  shall  be  free,  and  have  her 
whole  rights,  and  her  liberties  inviolable ; 

2.  We  also  have  granted  to  all  the  freemen  of  our  kingdom, 
for  us  and  for  our  heirs  for  ever,  all  the  underwritten  liberties,  to 
be  had  and  holden  by  them  and  their  heirs,  of  us  and  our  heirs  for 
ever: 

12.  No  scutage  or  aid  shall  be  imposed  in  our  kingdom,  unless 

by  the  general  council  of  our  kingdom  ;  except  for  ransoming  our 

person,  making  our  eldest  son  a  knight,  and  once  for  marrying  our 

eldest  daughter;  and  for  these  there  shall  be  paid  no  more  than  a 

24  369 


370  Appendix  of  Documents. 

reasonable  aid.     In  like   manner  it  shall   be  concerning  the  aids 
of  the  City  of  London. 

13.  And  the  City  of  London  shall  have  all  its  ancient  liberties 
and  free  customs,  as  well  by  land  as  by  water :  furthermore,  we 
will  and  grant  that  all  other  cities  and  boroughs,  and  towns  and 
ports,  shall  have  all  their  liberties  and  free  customs. 

14.  And  for  holding  the  general  council  of  the  kingdom  con- 
cerning the  assessment  of  aids,  except  in  the  three  cases  aforesaid, 
and  for  the  assessing  of  scutages,  we  shall  cause  to  be  summoned 
the  archbishops,  bishops,  abbots,  earls,  and  greater  barons  of  the 
realm,  singly  by  our  letters.  And  furthermore,  we  shall  cause  to 
be  summoned  generally,  by  our  sheriffs  and  bailiffs,  all  others  who 
hold  of  us  in  chief,  for  a  certain  day,  that  is  to  say,  forty  days  be- 
fore their  meeting  at  least,  and  to  a  certain  place  ;  and  in  all  letters 
of  such  summons  we  will  declare  the  cause  of  such  summons. 
And  summons  being  thus  made,  the  business  shall  proceed  on  the 
day  appointed,  according  to  the  advice  of  such  as  shall  be  present, 
although  all  that  were  summoned  come  not. 

17.  Common  pleas  shall  not  follow  our  court,  but  shall  be  holden 
in  some  place  certain. 

18.  Trials  upon  the  Writs  of  Novel  Disseisin, ^  and  of  Mort 
d'ancestor,^  and  of  Darrein  Presentment,^  shall  not  be  taken  but 
in  their  proper  counties,  and  after  this  manner:  We,  or  if  we 
should  be  out  of  the  realm,  our  chief  justiciary,  will  send  two  jus- 
ticiaries through  every  county  four  times  a  year,  who,  with  four 
knights  of  each  county,  chosen  by  the  county,  shall  hold  the  said 
assizes*  in  the  county,  on  the  day,  and  at  the  place  appointed. 

19.  And  if  any  matters  cannot  be  determined  on  the  day  ap- 
pointed for  homing  the  assizes  in  each  county,  so  many  of  the 
knights  and  freeholders  as  have  been  at  the  assizes  aforesaid  shall 
stay  to  decide  them  as  is  necessary,  according  as  there  is  more  or 
less  business. 

20.  A  freeman  shall  not  be  amerced  for  a  small  offence,  but 
only  according  to  the  degree  of  the  offence  ;  and  for  a  great  crime 

1  Dispossession. 

2  Death  of  the  ancestor ;  that  is,  in  cases  of  disputed  succession  to 
land. 

'  Last  presentation  to  a  benefice. 

*  The  word  Assize  here  means  an  assembly  of  knights  or  other  sub- 
stantial persons,  held  at  a  certain  time  and  place  where  they  sit  with  the 
Justice.  "  Assisa  "  or  "  Assize  "  is  also  taken  for  the  court,  place,  or 
time  at  which  the  writs  of  Assize  are  taken. 


Magna  Charta.  371 


according  to  the  heinousness  of  it,  saving  to  him  his  contenement  j  ^ 
and  after  the  same  manner  a  merchant,  saving  to  him  his  merchan- 
dise. And  a  villein  shall  be  amerced  after  the  same  manner,  sav- 
ing to  him  his  wainage,  if  he  falls  under  our  mercy;  and  none  of 
the  aforesaid  amerciaments  shall  be  assessed  but  by  the  oath  of 
honest  men  in  the  neighbourhood. 

21.  Earls  and  barons  shall  not  be  amerced  but  by  their  peers, 
and  after  the  degree  of  the  offence. 

24.  No  sheriff,  constable,  coroner,  or  other  our  bailiffs,  shall  hold 
"  Pleas  of  the  Crown."  2 

28.  No  constable  or  bailiff  of  ours  shall  take  corn  or  other 
chattels  of  any  man  unless  he  presently  give  him  money  for  it,  or 
hath  respite  of  payment  by  the  good-will  of  the  seller. 

30.  No  sheriff  or  bailiff  of  ours,  or  any  other,  shall  take  horses 
or  carts  of  any  freeman  for  carriage,  without  the  assent  of  the  said 
freeman. 

31.  Neither  shall  we  nor  our  bailiffs  take  any  man's  timber  for 
our  castles  or  other  uses,  unless  by  the  consent  of  the  owner  of  the 
timber. 

36.  Nothing  from  henceforth  shall  be  given  or  taken  for  a  writ 
of  inquisition  of  life  or  limb,  but  it  shall  be  granted  freely,  and  not 
denied.^ 

39.  No  freeman  shall  be  taken  or  imprisoned,  or  disseised,  or 
outlawed,  or  banished,  or  any  ways  destroyed,  nor  will  we  pass 
upon  him,  nor  will  we  send  upon  him,  unless  by  the  lawful  judg- 
ment of  his  peers,  or  by  the  law  of  the  land. 

40.  We  will  sell  to  no  man,  we  will  not  deny  to  any  man,  either 
justice  or  right. 

41.  All  merchants  shall  have  safe  and  secure  conduct,  to  go  out 
of,  and  to  come  into  England,  and  to  stay  there  and  to  pass  as 


1  That  by  which  a  person  subsists  and  which  is  essential  to  his  rank 
in  life. 

2  These  are  suits  conducted  in  the  name  of  the  Crown  against  crim- 
inal offenders, 

*  This  important  writ,  or  "  writ  concerning  hatred  and  malice,"  may 
have  been  the  prototype  of  the  writ  of  Habeas  Corpus,  and  was  granted 
for  a  similar  purpose. 


372  Appendix  of  Documents. 

well  by  land  as  by  water,  for  buying  and  selling  by  the  ancient 
and  allowed  customs,  without  any  unjust  tolls;  except  in  time  of 
war,  or  when  they  are  of  any  nation  at  war  with  us.  And  if  there 
be  found  any  such  in  our  land,  in  the  beginning  of  the  war,  they 
shall  be  attached,  without  damage  to  their  bodies  or  goods,  until  it 
be  known  unto  us,  or  our  chief  justiciary,  how  our  merchants  be 
treated  in  the  nation  at  war  with  us ;  and  if  ours  be  safe  there,  the 
others  shall  be  safe  in  our  dominions. 

42.  It  shall  be  lawful,  for  the  time  to  come,  for  any  one  to  go 
out  of  our  kingdom,  and  return  safely  and  securely  by  land  or  by 
water,  saving  his  allegiance  to  us;  unless  in  time  of  war,  by 
some  short  space,  for  the  common  benefit  of  the  realm,  except 
prisoners  and  outlaws,  according  to  the  law  of  the  land,  and  people 
in  war  with  us,  and  merchants  who  shall  be  treated  as  is  above 
mentioned. 

60.  All  the  aforesaid  customs  and  liberties,  which  we  have 
granted  to  be  holden  in  our  kingdom,  as  much  as  it  belongs  to  us, 
all  people  of  our  kingdom,  as  well  clergy  as  laity,  shall  observe,  as 
far  as  they  are  concerned,  towards  their  dependents. 

61.  And  whereas,  for  the  honour  of  God  and  the  amendment  of 
our  kingdom,  and  for  the  better  quieting  the  discord  that  has 
arisen  between  us  and  our  barons,  we  have  granted  all  these  things 
aforesaid;  willing  to  render  them  firm  and  lasting,  we  do  give  and 
grant  our  subjects  the  underwritten  security,  namely  that  the  barons 
may  choose  five-and-twenty  barons  of  the  kingdom,  whom  they 
think  convenient;  who  shall  take  care,  with  all  their  might,  to 
hold  and  observe,  and  cause  to  be  observed,  the  peace  and  liber- 
ties we  have  granted  them,  and  by  this  our  present  Charter  con- 
firmed in  this  manner ;  that  is  to  say,  that  if  we,  our  justiciary,  our 
bailiffs,  or  any  of  our  officers,  shall  in  any  circumstance  have  failed 
in  the  performance  of  them  towards  any  person,  or  shall  have 
broken  through  any  of  these  articles  of  peace  and  security,  and 
the  offence  be  notified  to  four  barons  chosen  out  of  the  five-and- 
twenty  before  mentioned,  the  said  four  barons  shall  repair  to  us, 
or  our  justiciary,  if  we  are  out  of  the  realm,  and,  laying  open  the 
grievance,  shall  petition  to  have  it  redressed  without  delay:  and  if 
it  be  not  redressed  by  us,  or  if  we  should  chance  to  be  out  of  the 
realm,  if  it  should  not  be  redressed  by  our  justiciary  within  forty 
days,  reckoning  from  the  time  it  has  been  notified  to  us,  or  to  our 
justiciary  (if  we  should  be  out  of  the  realm),  the  four  barons  afore- 
said shall  lay  the  cause  before  the  rest  of  the  five-and-twenty 
barons;  and  the   said  five-and-twenty  barons,  together  with  the 


Magna  Charta.  373 

community  of  the  whole  kingdom,  shall  distrain  and  distress  us  in 
all  the  ways  in  which  they  shall  be  able,  by  seizing  our  castles, 
lands,  possessions,  and  in  any  other  manner  they  can,  till  the 
grievance  is  redressed,  according  to  their  pleasure ;  saving  harm- 
less our  own  person,  and  the  persons  of  our  Queen  and  children ; 
and  when  it  is  redressed,  they  shall  behave  to  us  as  before.  And 
any  person  whatsoever  in  the  kingdom  may  swear  that  he  will 
obey  the  orders  of  the  five-and-twenty  barons  aforesaid  in  the  ex- 
ecution of  the  premises,  and  will  distress  us,  jointly  with  them,  to 
the  utmost  of  his  power;  and  we  give  public  and  free  liberty  to 
any  one  that  shall  please  to  swear  to  this,  and  never  will  hinder 
any  person  from  taking  the  same  oath. 

63.  Wherefore  we  will  and  firmly  enjoin,  that  the  Church  of 
England  be  free,  and  that  all  men  in  our  kingdom  have  and  hold 
all  the  aforesaid  liberties,  rights,  and  concessions,  truly  and  peace- 
ably, freely  and  quietly,  fully  and  wholly  to  themselves  and  their 
heirs,  of  us  and  our  heirs,  in  all  things  and  places,  for  ever,  as  is 
aforesaid.  It  is  also  sworn,  as  well  on  our  part  as  on  the  part  of 
the  barons,  that  all  the  things  aforesaid  shall  be  observed  in  good 
faith,  and  without  evil  subtilty.  Given  under  our  hand,  in  the  pres- 
ence of  the  witnesses  above  named,  and  many  others,  in  the  meadow 
called  Runingmede,  between  Windsor  and  Staines,  the  15th  day  of 
June,  in  the  17th  year  of  our  reign, 

[^Henry  III.  during  the  first  year  of  his  reign  (1216),  granted  a  Great 
Charter,  essentially  the  same  as  Magna  Charta,  from  which  extracts  have 
been  given,  but  not  including  Articles  12,  14,  and  61  of  those  above  set 
out.  Substantially  the  same  charter  was  again  granted  in  1217,  together 
with  a  Charter  of  the  Forest,  covering  some  of  the  provisions  of  Magna 
Charta  which  related  to  the  forests.  Again  in  1225  a  Great  Charter  of 
the  same  substance  was  granted  by  Henry  III.  and  this  last  charter,  to- 
gether with  the  Charter  of  the  Forest,  was  confirmed  by  him  in  I237t 
His  successor,  Edward  I.  (1297),  confirmed  and  re-issued  the  Great  Char- 
ter of  1225  and  the  Charter  of  the  Forest  of  1217.  As  distinct  from  the 
Charter  of  the  Forest,  the  Charter  of  1225  was  designated  as  the  Charter 
of  Liberties,  and  is  the  one  published  in  the  English  Statutes  at  Large 
as  the  Great  Charter.  The  history  of  the  Charters  is  given  by  Professor 
Stubbs  in  his  Select  Charters  (published  in  1870),  but  usually  he  does 
not  give  translations.  In  Mabel  Hill's  Liberty  Documents  the  translated 
texts  of  the  Confirmation  of  the  Charters  of  Edward  I.  and  other  illus- 
trative documents  are  given,  with  explanations  and  comments.] 


B. 


THE   BILL   OF   RIGHTS    ENACTED   BY  THE 
ENGLISH    PARLIAMENT,    1689. 

[|The  following  text  is  taken  from  the  English  Statutes  at  Large,  Vol.  3 
(Part  I),  40-43,  being  i  William  and  Mary,  Sess.  2,  C.  II.  It  may  be 
found  also  in  Mabel  Hill's  Liberty  Docn?nents,  with  the  text  of  the  Act 
of  Settlement  and  critical  comments  as  to  each.] 

An  Act  declaring  the  Rights  and  Liberties  of  the  Subject,  and 
settling  the  Succession  of  the  Crown. 

Whereas  the  Lords  Spiritual  and  Temporal,  and  Commons, 
assembled  at  Westminster,  lawfully,  fully,  and  freely  represent- 
ing all  the  estates  of  the  people  of  this  realm,  did  upon  the  thir- 
teenth day  of  February  in  the  year  of  our  Lord  one  thousand  six 
hundred  eighty-eight  [o.  s.],  present  unto  their  Majesties,  then 
'called  and  known  by  the  names  and  stiie  of  William  and  Mary, 
Prince  and  Princess  of  Orange,  being  present  in  their  proper  per- 
sons, a  certain  declaration  in  writing,  made  by  the  said  Lords  and 
Commons,  in  the  words  following;   viz. 

"Whereas  the  late  King  James  the  Second,  by  the  assistance  of 
divers  evil  counsellors,  judges,  and  ministers  employed  by  him,  did 
endeavour  to  subvert  and  extirpate  the  Protestant  religion,  and  the 
•laws  and  liberties  of  this  kingdom  : 

1.  By  assuming  and  exercising  a  power  of  dispensing  with  and 
suspending  of  laws,  and  the  execution  of  laws,  without  consent  of 
Parliament. 

2.  By  committing  and  prosecuting  divers  worthy  prelates,  for 
humbly  petitioning  to  be  excused  from  concurring  to  the  said  as- 
sumed power. 

3.  By  issuing  and  causing  to  be  executed  a  commission  under 
the  Great  Seal  for  erecting  a  court  called,  The  Court  of  Com- 
missioners for  Ecclesiastical  Causes. 

4.  By  levying  money  for  and  to  the  use  of  the  Crown,  by  pre- 

374 


English  Bill  of  Rights.  375 

tence  of  prerogative,  for  other  time,  and  in  other  manner,  than  the 
same  was  granted  by  Parliament. 

5.  By  raising  and  keeping  a  standing  army  within  this  kingdom 
in  time  of  peace,  without  consent  of  Parliament,  and  quartering 
soldiers  contrary  to  law. 

6.  By  causing  several  good  subjects,  being  Protestants,  to  be 
disarmed,  at  the  same  time  when  Papists  were  both  armed  and 
employed,  contrary  to  law. 

7.  By  violating  the  freedom  of  election  of  members  to  serve  in 
Parliament. 

8.  By  prosecutions  in  the  Court  of  King's  Bench,  for  matters 
and  causes  cognizable  only  in  Parliament;  and  by  divers  other 
arbitrary  and  illegal  courses. 

9.  And  whereas  of  late  years,  partial,  corrupt,  and  unqualified 
persons,  have  been  returned  and  served  on  juries  in  trials,  and 
particularly  divers  jurors  in  trials  for  high  treason,  which  were  not 
freeholders. 

10.  And  excessive  bail  hath  been  required  of  persons  committed 
in  criminal  cases,  to  elude  the  benefit  of  the  laws  made  for  the 
liberty  of  the  subjects. 

11.  And  excessive  fines  have  been  imposed;  and  illegal  and 
cruel  punishments  inflicted. 

12.  And  several  grants  and  promises  made  of  fines  and  forfeit- 
ures, before  any  conviction  or  judgment  against  the  persons,  upon 
whom  the  same  were  to  be  levied. 

All  which  are  utterly  and  directly  contrary  to  the  known  laws 
and  statutes,  and  freedom  of  this  realm. 

And  whereas  the  said  late  King  James  the  Second  having  ab- 
dicated the  government,  and  the  throne  being  thereby  vacant,  his 
Highness  the  Prince  of  Orange  (whom  it  hath  pleased  Almighty 
God  to  make  the  glorious  instrument  of  delivering  this  kingdom 
from  Popery  and  arbitrary  power)  did  (by  the  advice  of  the  Lords 
Spiritual  and  Temporal,  and  divers  principal  persons  of  the  Com- 
mons) cause  letters  to  be  written  to  the  Lords  Spiritual  and 
Temporal;  being  Protestants,  and  other  letters  to  the  several 
counties,  cities,  universities,  boroughs,  and  cinque-ports,  for  the 
choosing  of  such  persons  to  represent  them,  as  were  of  right  to 
be  sent  to  Parliament,  to  meet  and  sit  at  Westminster  upon  the 
two  and  twentieth  day  of  January  in  this  year  one  thousand  six 
hundred  eighty  and  eight,  in  order  to  such  an  establishment,  as 
that  their  religion,  laws,  and  liberties  might  not  again  be  in  danger 
of  being  subverted :  Upon  which  letters,  elections  having  been 
accordingly  made, 


376  Appendix  of  Documents. 

And  thereupon  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  pursuant  to  their  respective  letters  and  elections,  being 
now  assembled  in  a  full  and  free  representative  of  this  nation,  tak- 
ing into  their  most  serious  consideration  the  best  means  for  attain- 
ing the  ends  aforesaid  ;  do  in  the  first  place  (as  their  ancestors  in 
like  case  have  usually  done)  for  the  vindicating  and  asserting 
their  ancient  rights  and  liberties,  declare; 

1.  That  the  pretended  power  of  suspending  of  laws,  or  the  exe- 
cution of  laws,  by  regal  authority,  without  consent  of  Parliament, 
is  illegal. 

2.  That  the  pretended  power  of  dispensing  with  laws,  or  the  exe- 
cution of  laws,  by  regal  authority,  as  it  hath  been  assumed  and 
exercised  of  late,  is  illegal. 

3.  That  the  commission  for  erecting  the  late  Court  of  Commis- 
sioners for  Ecclesiastical  Causes,  and  all  other  commissions  and 
courts  of  like  nature,  are  illegal  and  pernicious. 

4.  That  levying  money  for  or  to  the  use  of  the  crown,  by 
pretence  of  prerogative,  without  grant  of  Parliament,  for  longer 
time,  or  in  other  manner  than  the  same  is  or  shall  be  granted,  is 
illegal. 

5.  That  it  is  the  right  of  the  subjects  to  petition  the  king, 
and  all  commitments  and  prosecutions  for  such  petitioning  are 
illegal. 

6.  That  the  raising  or  keeping  a  standing  army  within  the  king- 
dom in  time  of  peace,  unless  it  be  with  consent  of  Parliament,  is 
against  law. 

7.  That  the  subjects  which  are  Protestants  may  have  arms  for 
their  defence  suitable  to  their  conditions,  and  as  allowed  by  law. 

8.  That  election  of  members  of  Parliament  ought  to  be  free. 

9.  That  the  freedom  of  speech,  and  debates  or  proceedings  in 
Parliament,  ought  not  to  be  impeached  or  questioned  in  any  court 
or  place  out  of  Parliament. 

10.  That  excessive  bail  ought  not  to  be  required,  nor  excessive 
fines  imposed ;  nor  cruel  and  unusual  punishments  inflicted. 

11.  That  jurors  ought  to  be  duly  impanelled  and  returned,  and 
jurors  which  pass  upon  men  in  trials  for  high  treason  ought  to  be 
freeholders. 

12.  That  all  grants  and  promises  of  fines  and  forfeitures  of 
particular  persons  before  conviction,  are  illegal  and  void. 

13.  And  that  for  redress  of  all  grievances,  and  for  the  amend- 
ing, strengthening,  and  preserving  of  the  laws,  Parliament  ought  to 
be  held  frequently. 

And  they  do  claim,  demand,  and  insist  upon  all  and  singular  the 


English  Bill  of  Rights.  377 

premisses,  as  their  undoubted  rights  and  liberties ;  and  that  no 
declarations,  judgements,  doings,  or  proceedings,  to  the  prejudice 
of  the  people  in  any  of  the  said  premisses,  ought  in  any  wise  to  be 
drawn  hereafter  into  consequence  or  example. 

To  which  demand  of  their  rights  they  are  particularly  encouraged 
by  the  declaration  of  his  Highness  the  Prince  of  Orange,  as  being 
the  only  means  for  obtaining  a  full  redress  and  remedy  therein. 

Having  therefore  an  entire  confidence,  That  his  said  Highness 
the  Prince  of  Orange  will  perfect  the  deliverance  so  far  advanced 
by  him,  and  will  still  preserve  them  from  the  violation  of  their 
rights,  which  they  have  here  asserted,  and  from  all  other  attempts 
upon  their  religion,  rights,  and  liberties. 

II.  The  said  Lords  Spiritual  and  Temporal,  and  Commons,  as- 
sembled at  Westminster,  do  resolve.  That  William  and  Mary  Prince 
and  Princess  of  Orange  be,  and  be  declared.  King  and  Queen  of 
England,  France,  and  Ireland,  and  the  dominions  thereunto  belong- 
ing, to  hold  the  crown  and  royal  dignity  of  the  said  kingdoms  and 
dominions  to  them  the  said  Prince  and  Princess  during  their  lives, 
and  the  life  of  the  survivor  of  them  ;  and  that  the  sole  and  full 
exercise  of  the  regal  power  be  only  in,  and  executed  by  the  said 
Prince  of  Orange,  in  the  names  of  the  said  Prince  and  Princess, 
during  their  joint  lives;  and  after  their  deceases,  the  said  crown 
and  royal  dignity  of  the  said  kingdoms  and  dominions  to  be  to  the 
heirs  of  the  body  of  the  said  Princess;  and  for  default  of  such 
issue  to  the  Princess  Anne  of  Denmark,  and  the  heirs  of  her  body; 
and  for  default  of  such  issue  to  the  heirs  of  the  body  of  the  said 
Prince  of  Orange.  And  the  Lords  Spiritual  and  Temporal,  and 
Commons,  do  pray  the  said  Prince  and  Princess  to  accept  the  same 
accordingly. 

III.  And  that  the  oaths  hereafter  mentioned  be  taken  by  all 
persons  of  whom  the  oaths  of  allegiance  and  supremacy  might  be 
required  by  law,  instead  of  them  ;  and  that  the  said  oaths  of 
allegiance  and  supremacy  be  abrogated. 

I,  A.  B.,  do  sincerely  promise  and  swear.  That  I  will  be  faith- 
ful and  bear  true  allegiance  to  their  Majesties  King  William  and 
Queen  Mary  : 

So  help  me  God. 

I,  A.  B.,  do  swear,  That  I  do  from  my  heart  abhor,  detest,  and 
abjure,  as  impious  and  heretical,  that  damnable  doctrine  and  posi- 
tion. That  princes  excommunicated  or  deprived  by  the  Pope,  or 
any  authority  of  the  See  of  Rome,  may  be  deposed  or  murdered 
by  their  subjects,  or  any  other  whatsoever.  And  I  do  declare, 
that  no  foreign  prince,  person,  prelate,  state,  or  potentate  hath,  or 


2^8  Appendix  of  Documents. 

ought  to  have,  any  jurisdiction,  power,  superiority,  pre-eminence, 
or  authority,  ecclesiastical  or  spiritual,  within  this  realm  : 

So  help  me  God." 

IV.  Upon  which  their  said  Majesties  did  accept  the  crown  and 
royal  dignity  of  the  kingdoms  of  England,  France,  and  Ireland, 
and  the  dominions  thereunto  belonging,  according  to  the  resolution 
and  desire  of  the  said  Lords  and  Commons  contained  in  the  said 
declaration. 

V.  And  thereupon  their  Majesties  were  pleased.  That  the  said 
Lords  Spiritual  and  Temporal,  and  Commons,  being  the  two 
Houses  of  Parliament,  should  continue  to  sit,  and  with  their 
Majesties'  royal  concurrence  make  effectual  provision  for  the 
settlement  of  the  religion,  laws  and  liberties  of  this  kingdom,  so 
that  the  same  for  the  future  might  not  be  in  danger  again  of  being 
subverted ;  to  which  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  did  agree  and  proceed  to  act  accordingly. 

VL  Now  in  pursuance  of  the  premisses,  the  said  Lords  Spiritual 
and  Temporal,  and  Commons,  in  Parliament  assembled,  for  the 
ratifying,  confirming  and  establishing  the  said  declaration,  and  the 
articles,  clauses,  matters,  and  things  therein  contained,  by  the  force 
of  a  law  made  in  due  form  by  authority  of  Parliament,  do  pray  that 
it  may  be  declared  and  enacted,  That  all  and  singular  the  rights 
and  liberties  asserted  and  claimed  in  the  said  declaration,  are  the 
true,  ancient,  and  indubitable  rights  and  liberties  of  the  people  of 
this  kingdom,  and  so  shall  be  esteemed,  allowed,  adjudged, 
deemed,  and  taken  to  be,  and  that  all  and  every  the  particulars 
aforesaid  shall  be  firmly  and  strictly  holden  and  observed,  as  they 
are  expressed  in  the  said  declaration  ;  and  all  officers  and  ministers 
whatsoever  shall  serve  their  Majesties  and  their  successors  accord- 
ing to  the  same  in  all  times  to  come. 

VIL  And  the  said  Lords  Spiritual  and  Temporal,  and  Com- 
mons, seriously  considering  how  it  hath  pleased  Almighty  God,  in 
his  marvellous  providence,  and  merciful  goodness  to  this  nation, 
to  provide  and  preserve  their  said  Majesties  royal  persons  most 
happily  to  reign  over  us  upon  the  throne  of  their  ancestors,  for 
which  they  render  unto  Him  from  the  bottom  of  their  hearts  their 
humblest  thanks  and  praises,  do  truly,  firmly,  assuredly,  and  in  the 
sincerity  of  their  hearts  think,  and  do  hereby  recognize,  acknowl- 
edge, and  declare,  That  King  James  the  Second  having  abdicated 
the  government,  and  their  Majesties  having  accepted  the  crown  and 
royal  dignity  as  aforesaid,  their  said  Majesties  did  become,  were, 
are,  and  of  right  ought  to  be,  by  the  laws  of  this  realm,  our 
Sovereign  Liege  Lord  and  Lady,  King  and  Queen  of  England, 


English  Bill  of  Rights.  379 

France,  and  Ireland,  and  the  dominions  thereunto  belonging,  in 
and  to  whose  princely  persons  the  royal  state,  crown,  and  dignity 
of  the  said  realms,  with  all  honours,  stiles,  titles,  regalities,  prerog- 
atives, powers,  jurisdictions  and  authorities  to  the  same  belonging 
and  appertaining,  are  most  fully,  rightfully,  and  intirely  invested 
and  incorporated,  united  and  annexed. 

VIII.  And  for  preventing  all  questions  and  divisions  in  this 
realm,  by  reason  of  any  pretended  titles  to  the  crown,  and  for  pre- 
serving a  certainty  in  the  succession  thereof,  in  and  upon  which 
the  unity,  peace,  tranquillity,  and  safety  of  this  nation  doth,  under 
God,  wholly  consist  and  depend,  the  said  Lords  Spiritual  and 
Temporal,  and  Commons,  do  beseech  their  Majesties  that  it  may 
be  enacted,  established  and  declared.  That  the  crown  and  regal 
government  of  the  said  kingdoms  and  dominions,  with  all  and 
singular  the  premisses  thereunto  belonging  and  appertaining,  shall 
be  and  continue  to  their  said  Majesties,  and  the  surv-ivor  of  them, 
during  their  lives,  and  the  life  of  the  survivor  of  them  :  And  that 
the  intire,  perfect,  and  full  exercise  of  the  regal  power  and  govern- 
ment be  only  in,  and  executed  by  his  Majesty,  in  the  names  of 
both  their  Majesties  during  their  joint  lives  ;  and  after  their 
deceases  the  said  crown  and  premisses  shall  be  and  remain  to  the 
heirs  of  the  body  of  her  Majesty;  and  for  default  of  such  issue,  to 
her  Royal  Highness  the  Princess  Anne  of  Denmark,  and  the  heirs 
of  her  body;  and  for  default  of  such  issue,  to  the  heirs  of  the 
body  of  his  said  Majesty:  And  thereunto  the  said  Lords  Spiritual 
and  Temporal,  and  Commons,  do,  in  the  name  of  all  the  people 
aforesaid,  most  humbly  and  faithfully  submit  themselves,  their 
heirs  and  posterities  for  ever;  and  do  faithfully  promise,  That  they 
will  stand  to,  maintain,  and  defend  their  said  Majesties,  and  also 
the  limitation  and  succession  of  the  Crown  herein  specified  and 
contained,  to  the  utmost  of  their  powers,  with  their  lives  and 
estates,  against  all  persons  whatsoever,  that  shall  attempt  anything 
to  the  contrary. 

IX.  And  whereas  it  hath  been  found  by  experience,  that  it  is 
inconsistent  with  the  safety  and  welfare  of  this  Protestant  kingdom 
to  be  governed  by  a  Popish  prince,  or  by  any  king  or  queen  marry- 
ing a  Papist;  the  said  Lords  Spiritual  and  Temporal,  and  Com- 
mons, do  further  pray  that  it  may  be  enacted,  That  all  and  every 
person  and  persons  that  is,  are,  or  shall  be  reconciled  to,  or  shall 
hold  communion  with,  the  see  or  church  of  Rome,  or  shall  profess 
the  Popish  religion,  or  shall  marry  a  Papist,  shall  be  excluded, 
and  be  for  ever  incapable  to  inherit,  possess,  or  enjoy  the  crown 
and  government  of  this  realm,  and  Ireland,  and  the  dominions 


380  Appendix  of  Documents. 

thereunto  belonging,  or  any  part  of  the  same,  or  to  have,  use,  or 
exercise  any  regal  power,  authority,  or  jurisdiction  within  the 
same  ;  and  in  all  and  every  such  case  or  cases  the  people  of  these 
realms  shall  be,  and  are  hereby  absolved  of  their  allegiance ;  and 
the  said  crown  and  government  shall  from  time  to  time  descend 
to,  and  be  enjoyed  by  such  person  or  persons,  being  Protestants, 
as  should  have  inherited  and  enjoyed  the  same,  in  case  the  said 
person  or  persons  so  reconciled,  holding  communion,  or  professing, 
or  marrying  as  aforesaid,  were  naturally  dead. 

X.  And  that  every  king  and  queen  of  this  realm,  who  at  any 
time  hereafter  shall  come  to  and  succeed  in  the  Imperial  crown  of 
this  kingdom,  shall,  on  the  first  day  of  the  meeting  of  the  first 
Parliament,  next  after  his  or  her  coming  to  the  crown,  sitting  in 
his  or  her  throne  in  the  House  of  Peers,  in  the  presence  of  the 
Lords  and  Commons  therein  assembled,  or  at  his  or  her  coro- 
nation, before  such  person  or  persons  who  shall  administer  the 
coronation  oath  to  him  or  her,  at  the  time  of  his  or  her  taking  the 
said  oath  (which  shall  first  happen),  make,  subscribe,  and  audibly 
repeat  the  declaration  mentioned  in  the  statute  made  in  the  thir- 
tieth year  of  the  reign  of  King  Charles  the  Second,  intituled,  "  An 
Act  for  the  more  effectual  preserving  the  King's  Person  and  Gov- 
ernment, by  disabling  Papists  from  sitting  in  either  House  of 
Parliament."  But  if  it  shall  happen,  that  such  king  or  queen, 
upon  his  or  her  succession  to  the  crown  of  this  realm,  shall  be 
under  the  age  of  twelve  years,  then  every  such  king  or  queen  shall 
make,  subscribe,  and  audibly  repeat  the  said  declaration  at  his  or 
her  coronation,  or  the  first  day  of  the  meeting  of  the  first  Parlia- 
ment as  aforesaid,  which  shall  first  happen  after  such  king  or 
queen  shall  have  attained  the  said  age  of  twelve  years. 

XI.  All  which  their  Majesties  are  contented  and  pleased  shall 
be  declared,  enacted,  and  established  by  authority  of  this  present 
Parliament,  and  shall  stand,  remain,  and  be  the  law  of  this  realm 
for  ever ;  and  the  same  are  by  their  said  Majesties,  by  and  with 
the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
Commons,  in  Parliament  assembled,  and  by  the  authority  of  the 
same,  declared,  enacted,  and  established  accordingly. 

XII.  And  be  it  further  declared  and  enacted  by  the  authority 
aforesaid.  That  from  and  after  this  present  session  of  Parliament, 
no  dispensation  by  non  obstante  of  or  to  any  statute,  or  any  part 
thereof,  shall  be  allowed,  but  that  the  same  shall  be  held  void  and 
of  no  effect,  except  a  dispensation  be  allowed  of  in  such  statute, 
and  except  in  such  cases  as  shall  be  specially  provided  for  by  one 
or  more  bill  or  bills  to  be  passed  during  this  present  session  of 
Parliament. 


English  Bill  of  Rights.  381 

XIII.  Provided  that  no  charter,  or  grant,  or  pardon,  granted 
before  the  three  and  twentieth  day  of  October  in  the  year  of  our 
Lord  one  thousand  six  hundred  eighty-nine,  shall  be  any  ways 
impeached  or  invalidated  by  this  act,  but  that  the  same  shall  be 
and  remain  of  the  same  force  and  effect  in  law,  and  no  other,  than 
as  if  this  act  had  never  been  made. 


c. 

THE  VIRGINIA   BILL   OF   RIGHTS   (1776). 

[Virginia  seems  to  have  been  the  first  of  the  States  to  adopt  a  formal 
and  complete  constitution  (June,  1776)  in  response  to  the  recommenda- 
tion made  by  the  Continental  Congress  in  May  of  that  year,  that  the 
different  Colonies  proceed  to  provide  for  governments  of  their  own. 
New  Hampshire  had  already  (in  January  preceding)  adopted  a  so-called 
constitution,  but  it  was  rather  a  declaration  of  principles  than  a  formal 
instrument  of  government.  In  Virginia  the  Bill  of  Rights  and  the  con- 
stitution containing  a  plan  of  government  were  adopted  as  separate 
instruments,  and  this  was  done  also  in  Maryland,  Delaware,  and  North 
Carolina.  Pennsylvania  was  the  first  of  the  States  to  embody  Preamble 
Bill,  or  Declaration  of  Rights,  and  Constitution,  or  Frame  of  Government, 
in  one  instrument  (September,  1776).  Massachusetts  was  the  last  of  the 
original  States  (save  Connecticut  and  Rhode  Island,  which  continued  gov- 
ernment under  their  charters)  to  adopt  a  constitution  (1780),  and  it  fol- 
lowed the  Pennsylvania  plan  of  a  combined  instrument;  but  it  was  the 
first  to  provide  for  submission  of  the  constitution  to  the  people  for  rati- 
fication. The  first  constitution  thus  submitted  was  rejected  (1779).  A 
full  account  of  methods  of  adoption  or  ratification  of  the  various  State 
constitutions  and  the  Federal  Constitution  is  given  in  Jameson's  Con- 
stitutional Conventions.  The  following  text  of  the  Virginia  Bill  of  Rights, 
which  will  serve  as  an  example  of  such  instruments,  whether  adopted 
separately  or  embodied  as  a  part  of  a  complete  Constitution,  is  taken 
from  Hening,  Statutes  at  Large  of  Virginia,  IX,  109-112.  A  slightly 
different  text  is  in  Mabel  Hill's  Liberty  Documents,  pp.  166-169.] 

A  DECLARATION  OF  RIGHTS  made  by  the  representatives  of  the 
good  people  of  Virginia,  assembled  in  full  and  free  convention ; 
which  rights  do  pertain  to  them,  and  their  posterity,  as  the  basis 
and  foundation  of  government. 

Section  i.  That  all  men  are  by  nature  equally  free  and  inde- 
pendent, and  have  certain  inherent  rights,  of  which,  when  they 
enter  into  a  state  of  society,  they  cannot,  by  any  compact,  deprive 
or  divest  their  posterity;  namely,  the  enjoyment  of  life  and  liberty, 
with  the  means  of  acquiring  and  possessing  property,  and  pursuing 
and  obtaining  happiness  and  safety. 

382 


Virginia  Bill  of  Rights.  383 


Sec.  2.  That  all  power  is  vested  in,  and  consequently  derived 
from,  the  people;  that  magistrates  are  their  trustees  and  servants, 
and  at  all  times  amenable  to  them. 

Sec.  3.  That  government  is,  or  ought  to  be,  instituted  for  the 
common  benefit,  protection,  and  security,  of  the  people,  nation,  or 
community;  of  all  the  various  modes  and  forms  of  government 
that  is  best,  which  is  capable  of  producing  the  greatest  degree  of 
happiness  and  safety,  and  is  most  effectually  secured  against  the 
danger  of  mal-administration  ;  and  that  whenever  any  government 
shall  be  found  inadequate  or  contrary  to  these  purposes,  a  majority 
of  the  community  hath  an  indubitable,  unalienable,  and  indefeasi- 
ble right,  to  reform,  alter,  or  abolish  it,  in  such  manner  as  shall 
be  judged  most  conducive  to  the  public  weal. 

Sec.  4.  That  no  man,  or  set  of  men,  are  entitled  to  exclusive  or 
separate  emoluments  or  privileges  from  the  community,  but  in  con- 
sideration of  publick  services ;  which,  not  being  descendible,  neither 
ought  the  offices  of  magistrate,  legislator,  or  judge  to  be  hereditary. 

Sec.  5.  That  the  legislative  and  executive  powers  of  the  State 
should  be  separate  and  distinct  from  the  judiciary  ;  and  that  the 
members  of  the  two  first  may  be  restrained  from  oppression,  by 
feehng  and  participating  the  burthens  of  the  people,  they  should,  at 
fixed  periods,  be  reduced  to  a  private  station,  return  into  that  body 
from  which  they  were  originally  taken,  and  the  vacancies  be  sup- 
plied by  frequent,  certain,  and  regular  elections,  in  which  all,  or  any 
part  of  the  former  members,  to  be  again  eligible,  or  ineligible,  as  the 
laws  shall  direct. 

Sec.  6.  That  elections  of  members  to  serve  as  representatives 
of  the  people,  in  assembly,  ought  to  be  free  ;  and  that  all  men,  hav- 
ing sufficient  evidence  of  permanent  common  interest  with,  and 
attachment  to,  the  community,  have  the  right  of  suffrage,  and  can- 
not be  taxed  or  deprived  of  their  property  for  publick  uses  without 
their  own  consent,  or  that  of  their  representatives  so  elected,  nor 
bound  by  any  law  to  which  they  have  not,  in  like  manner,  assented, 
for  the  publick  good. 

Sec.  7.  That  all  power  of  suspending  laws,  or  the  execution  of 
laws,  by  any  authority  without  consent  of  the  representatives  of  the 
people,  is  injurious  to  their  rights,  and  ought  not  to  be  exercised. 

Sec.  8.  That  in  all  capital  or  criminal  prosecutions  a  man  hath 
a  right  to  demand  the  cause  and  nature  of  his  accusation,  to  be 
confronted  with  the  accusers  and  witnesses,  to  call  for  evidence  in 
his  favour,  and  to  a  speedy  trial  by  an  impartial  jury  of  his  vicin- 
age, without  whose  unanimous  consent  he  cannot  be  found  guilty, 
nor  can  he  be  compelled  to  give  evidence  against  himself;  that 


384  Appendix  of  Documents. 

no  man  be  deprived  of  his  liberty  except  by  the  law  of  the  land,  or 
the  judgment  of  his  peers. 

Sec.  9.  That  excessive  bail  ought  not  to  be  required,  nor  exces- 
sive fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Sec.  10.  That  general  warrants,  whereby  any  officer  or  mes- 
senger may  be  commanded  to  search  suspected  places  without 
evidence  of  a  fact  committed,  or  to  seize  any  person  or  persons 
not  named,  or  whose  offence  is  not  particularly  described  and 
supported  by  evidence,  are  grievous  and  oppressive,  and  ought  not 
to  be  granted. 

Sec.  II.  That  in  controversies  respecting  property,  and  in  suits 
between  man  and  man,  the  ancient  trial  by  jury  is  preferable  to  any 
other,  and  ought  to  be  held  sacred. 

Sec.  12.  That  the  freedom  of  the  press  is  one  of  the  great 
bulwarks  of  liberty,  and  can  never  be  restrained  but  by  despotick 
governments. 

Sec.  13.  That  a  well  regulated  militia,  composed  of  the  body  of 
the  people,  trained  to  arms,  is  the  proper,  natural,  and  safe  defence 
of  a  free  State  ;  that  standing  armies,  in  time  of  peace,  should  be 
avoided,  as  dangerous  to  liberty;  and  that,  in  all  cases,  the  military 
should  be  under  strict  subordination  to,  and  governed  by,  the  civil 
power. 

Sec.  14.  That  the  people  have  a  right  to  uniform  government; 
and  therefore,  that  no  government  separate  from,  or  independent 
of,  the  government  of  Virginia,  ought  to  be  erected  or  established 
within  the  limits  thereof. 

Sec.  15.  That  no  free  government,  or  the  blessing  of  liberty, 
can  be  preserved  to  any  people  but  by  a  firm  adherence  to  justice, 
moderation,  temperance,  frugality,  and  virtue,  and  by  frequent  recur- 
rence to  fundamental  principles. 

Sec.  16.  That  religion,  or  the  duty  which  we  owe  to  our  Creator, 
and  the  manner  of  discharging  it,  can  be  directed  only  by  reason 
and  conviction,  not  by  force  or  violence,  and  therefore  all  men 
are  equally  entitled  to  the  free  exercise  of  religion,  according  to 
the  dictates  of  conscience ;  and  that  it  is  the  mutual  duty  of  all 
to  practise  Christian  forbearance,  love,  and  charity,  towards  each 
other. 


D. 

THE   DECLARATION   OF   INDEPENDENCE. 

In  Congress,  July  4,  1776. 

THE   UNANIMOUS    DECLARATION   OF   THE   THIRTEEN 
UNITED    STATES   OF  AMERICA. 

[The  following  text  is  from  a  facsimile  of  the  original  manuscript.] 

When  in  the  Course  of  human  events,  it  becomes  necessary  for 
one  people  to  dissolve  the  political  bands  which  have  connected 
them  with  another,  and  to  assume  among  the  powers  of  the  earth, 
the  separate  and  equal  station  to  which  the  Laws  of  Nature  and  of 
Nature's  God  entitle  them,  a  decent  respect  to  the  opinions  of 
mankind  requires  that  they  should  declare  the  causes  which  impel 
them  to  the  separation. We  hold  these  truths  to  be  self-evi- 
dent, that  all  men  are  created  equal,  that  they  are  endowed  by 
their  Creator  with  certain  unalienable  Rights,  that  among  these  are 
Life,  Liberty  and  the  pursuit  of  Happiness.  —  That  to  secure 
these  rights.  Governments  are  instituted  among  Men,  deriving 
their  just  powers  from  the  consent  of  the  governed,  —  That  when- 
ever any  Form  of  Government  becomes  destructive  of  these  ends, 
it  is  the  Right  of  the  People  to  alter  or  to  abolish  it,  and  to  institute 
new  Government,  laying  its  foundation  on  such  principles  and 
organizing  its  powers  in  such  form,  as  to  them  shall  seem  most 
likely  to  effect  their  Safety  and '  Happiness.  Prudence,  indeed, 
will  dictate  that  Governments  long  established  should  not  be 
changed  for  light  and  transient  causes;  and  accordingly  all  ex- 
perience hath  shewn,  tliat  mankind  are  more  disposed  to  suifer, 
while  evils  are  sufferable,  than  to  right  themselves  by  abolishing 
the  forms  to  which  they  are  accustomed.  But  when  a  long  train 
of  abuses  and  usurpations,  pursuing  invariably  the  same  Object 
evinces  a  design  to  reduce  them  under  absolute  Despotism,  it  is 
their  right,  it  is  their  duty,  to  throw  off  such  Government,  and  to 
25  385 


^ 


386  Appendix  of  Documents. 

provide  new  Guards  for  their  future  security.^  Such  has  been  the 
patient  sufferance  of  these  Colonies ;  and  such  is  now  the  neces- 
sity which  constrains  them  to  alter  their  former  Systems  of  Gov- 
ernment. The  history  of  the  present  King  of  Great  Britain  is  a 
history  of  repeated  injuries  and  usurpations,  all  having  in  direct 
object  the  establishment  of  an  absolute  Tyranny  over  these  States. 

To  prove  this,  let  Facts  be  submitted  to  a  candid  world. He 

has  refused  his  Assent  to  Laws,  the  most  wholesome  and  necessary 

for  the  public  good. He  has  forbidden  his  Governors  to  pass 

Laws  of  immediate  and  pressing  importance,  unless  suspended  in 
their  operation  till  his  Assent  should  be  obtained  ;  and  when  so 

suspended,  he  has  utterly  neglected  to  attend  to  them. He  has 

refused  to  pass  other  Laws  for  the  accommodation  of  large  dis- 
tricts of  people,  unless  those  people  would  relinquish  the  right  of 
Representation  in  the  Legislature,  a  right  inestimable  to  them  and 

formidable  to  tyrants  only. He  has  called  together  legislative 

bodies  at  places  unusual,  uncomfortable,  and  distant  from  the 
depository  of  their  public  Records,  for  the  sole  purpose  of  fatigu- 
ing them  into  compliance  with  his  measures. He  has  dissolved 

Representative  Houses  repeatedly,  for  opposing  with  manly  firm- 
ness his  invasions  on  the  rights  of  the  people. He  has  refused  for 

a  long  time,  after  such  dissolutions,  to  cause  others  to  be  elected  ; 
whereby  the  Legislative  powers,  incapable  of  Annihilation,  have 
returned  to  the  People  at  large  for  their  exercise  ;  the  State  re- 
maining in  the  mean  time  exposed  to  all  the  dangers  of  invasion 

from  without,  and  convulsions  within. He  has  endeavoured  to 

prevent  the  population  of  these  States  ;  for  that  purpose  obstruct- 
ing the  Laws  for  Naturalization  of  Foreigners  ;  refusing  to  pass 
others  to  encourage  their  migration  hither,  and  raising  the  condi- 
tions of  new  Appropriations  of  Lands. He  has  obstructed  the 

Administration  of  Justice,  by  refusing  his  Assent  to  Laws  for  es- 
tablishing Judiciary  powers. He  has  made  Judges  dependent 

on  his  Will  alone,  for  the  tenure  of  their  offices,  and  the  amount 

and  payment  of  their  salaries. He  has  erected  a  multitude  of 

New  Offices,  and  sent  hither  swarms  of  Officers  to  harrass  our 

People,  and  eat  out  their  substance. He  has  kept  among  us,  in 

times  of  peace.  Standing  Armies  without  the  Consent  of  our  legis- 
latures.  He  has  affected  to  render  the  MiHtary  independent  of 

and  superior  to  the  Civil  power. He  has  combined  with  others 

to  subject  us  to  a  jurisdiction  foreign  to  our  constitution,  and  unac- 
knowledged by  our  laws ;  giving  his  Assent  to  their  Acts  of  pre- 
tended  Legislation: For   quartering  large  bodies   of  armed 

troops  among   us : For  protecting  them,  by  a   mock  Trial, 


Declaration  of  Independence.  387 

from   punishment  for  any   Murders  which   they   should   commit 

on  the  Inhabitants  of  these  States  : For  cutting  off  our  Trade 

with  all  parts  of  the  world : For  imposing  Taxes  on  us  with- 
out  our  Consent : For  depriving   us  in  many  cases,  of  the 

benefits  of  Trial  by  Jury: For  transporting  us  beyond  Seas 

to  be  tried   for  pretended  offences : For  abolishing  the  free 

System  of  English  Laws  in  a  neighbouring  Province,  estab- 
lishing therein  an  Arbitrary  government,  and  enlarging  its  Bound- 
aries so  as  to  render  it  at  once  an  example  and  fit  instrument 

for  introducing  the  same  absolute  rule  into  these  Colonies : 

For  taking  away  our  Charters,  abolishing  our  most  valuable  Laws, 

and  altering  fundamentally  the  Forms  of  our  Governments: 

For  suspending  our  own  Legislatures,  and  declaring  themselves 
invested  with  power  to   legislate  for  us  in  all  cases  whatsoever. 

He   has   abdicated   Government  here,  by   declaring  us   out 

of  his  Protection  and  waging  War  against  us. He  has  plun- 
dered our  seas,  ravaged  our  Coasts,  burnt  our  towns,  and  de- 
stroyed the  lives  of  our  people. He  is  at  this  time  transporting 

large  Armies  of  foreign  Mercenaries  to  compleat  the  works  of 
death,  desolation  and  tyranny,  already  begun  with  circumstances 
of  Cruelty  &  perfidy  scarcely  paralleled  in   the  most   barbarous 

ages,  and  totally  unworthy  the  Head  of  a  civilized  nation. He 

has  constrained  our  fellow  Citizens  taken  Captive  on  the  high 
Seas  to  bear  Arms  against  their  Country,  to  become  the  execu- 
tioners of  their  friends  and  Brethren,  or  to  fall  themselves  by  their 

Hands. He  has  excited  domestic  insurrections  amongst  us,  and 

has  endeavoured  to  bring  on  the  inhabitants  of  our  frontiers,  the 
merciless  Indian  Savages,  whose  known  rule  of  warfare,  is  an  undis- 
tinguished destruction  of  all  ages,  sexes  and  conditions.  In  every 
stage  of  these  Oppressions  We  have  Petitioned  for  Redress  in  the 
most  humble  terms  :  Our  repeated  Petitions  have  been  answered 
only  by  repeated  injury.  A  Prince,  whose  character  is  thus 
marked  by  every  act  which  may  define  a  Tyrant,  is  unfit  to  be  the 
ruler  of  a  free  people.  Nor  have  We  been  wanting  in  attentions 
to  our  Brittish  brethren.  We  have  warned  them  from  time  to 
time  of  attempts  by  their  legislature  to  extend  an  unwarrantable 
jurisdiction  over  us.  We  have  reminded  them  of  the  circum- 
stances of  our  emigration  and  settlement  here.  We  have  appealed 
to  their  native  justice  and  magnanimity,  and  we  have  conjured 
them  by  the  ties  of  our  common  kindred  to  disavow  these  usurpa- 
tions, which,  would  inevitably  interrupt  our  connections  and  corre- 
spondence. They  too  have  been  deaf  to  the  voice  of  justice  and 
of  consanguinity.     We  must,  therefore,  acquiesce  in  the  necessity, 


388  Appendix  of  Documents. 

which  denounces  our  Separation,  and  hold  them,  as  we  hold  the 

rest  of  mankind,  Enemies  in  War,  in  Peace  Friends. 

""^  We,  therefore,  the  Representatives  of  the  united  States  of 
America,  in  General  Congress,  Assembled,  appealing  to  the 
Supreme  Judge  of  the  world  for  the  rectitude  of  our  intentions, 
do,  in  the  Name,  and  by  Authority  of  the  good  People  of  these 
Colonies,  solemnly  publish  and  declare.  That  these  United  Colo- 
nies are,  and  of  Right  ought  to  be  Free  and  Independent  States; 
that  they  are  Absolved  from  all  Allegiance  to  the  British  Crown, 
and  that  all  political  connection  between  them  and  the  State  of 
•  Great  Britain,  is  and  ought  to  be  totally  dissolved;  and  that  as 
Free  and  Independent  States,  they  have  full  Power  to  levy  War, 
conclude  Peace,  contract  Alliances,  establish  Commerce,  and  to  do 
all  other  Acts  and  Things  which  Independent  States  may  of  right 
do. And  for  the  support  of  this  Declaration,  with  a  firm  reli- 
ance on  the  Protection  of  divine  providence,  we  mutually  pledge  to 
each  other  our  Lives,  our  Fortunes  and  our  sacred  Honor. 

[Here  follow  the  signatures.] 


E. 
ARTICLES  OF  CONFEDERATION    (1781). 

[The  following  is  the  official  engrossed  text  as  printed  in  American 
History  Leaflets,  No.  20,  from  the  original  parchment  rolls.] 

^0  all  to  "QBlbom  these  Presents  shall  come,  we  the  under 
signed  Delegates  of  the  States  affixed  to  our  Names  send  greet- 
ing. Whereas  the  Delegates  of  the  United  States  of  America  in 
Congress  assembled  did  on  the  fifteenth  day  of  November  in  the 
Year  of  Our  Lord  One  thousand  seven  Hundred  and  Seventy 
seven,  and  in  the  second  Year  of  the  Independence  of  America 
agree  to  certain  articles  of  Confederation  and  perpetual  Union 
between  the  States  of  Newhampshire,  Massachusetts-bay,  Rhode- 
island  and  Providence  Plantations,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North-Caro- 
lina, South-Carolina,  and  Georgia  in  the  Words  following,  viz. 
"Articles  of  Confederation  and  perpetual  Union  between 
the  States  of  Newhampshire,  Massachusetts-bay,  Rhodeisland 
and  Providence  Plantations,  Connecticut,  New- York,  New-Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North-Carolina, 
South-Carolina  and  Georgia. 

Article  I.  The  Stile  of  this  confederacy  shall  be  "The 
United  States  of  America." 

Article  II.  Each  state  retains  its  sovereignty,  freedom  and 
independence,  and  every  Power,  Jurisdiction  and  right,  which  is 
not  by  this  confederation  expressly  delegated  to  the  United  States, 
in  Congress  assembled. 

Article  III.  The  said  states  hereby  severally  enter  into  a 
firm  league  of  friendship  with  each  other,  for  their  common  de- 
fence, the  security  of  their  Liberties,  and  their  mutual  and  general 
welfare,  binding  themselves  to  assist  each  other,  against  all  force 
offered  to,  or  attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretence  whatever. 

389 


390  Appendix  of  Documents. 

Article  IV.  The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different  states 
in  this  union,  the  free  inhabitants  of  each  of  these  states,  paupers, 
vagabonds,  and  fugitives  from  Justice  excepted,  shall  be  entitled 
to  all  privileges  and  immunities  of  free  citizens  in  the  several 
states;  and  the  people  of  each  state  shall  have  free  ingress  and 
regress  to  and  from  any  other  state,  and  shall  enjoy  therein  all  the 
privileges  of  trade  and  commerce,  subject  to  the  same  duties,  im- 
positions and  restrictions  as  the  inhabitants  thereof  respectively, 
provided  that  such  restriction  shall  not  extend  so  far  as  to  prevent 
the  removal  of  property  imported  into  any  state,  to  any  other  state 
of  which  the  Owner  is  an  inhabitant ;  provided  also  that  no  im- 
position, duties  or  restriction  shall  be  laid  by  any  state,  on  the 
property  of  the  united  states,  or  either  of  them. 

If  any  Person  be  guilty  of,  or  charged  with  treason,  felony,  or 
other  high  misdemeanor  in  any  state,  shall  flee  from  Justice, 
and  be  found  in  any  of  the  united  states,  he  shall  upon  demand  of 
the  Governor  or  executive  power,  of  the  state  from  which  he  fled, 
be  delivered  up  and  removed  to  the  state  having  jurisdiction  of  his 
offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states  to 
the  records,  acts  and  judicial  proceedings  of  the  courts  and  mag- 
istrates of  every  other  state. 

Article  V.  For  the  more  convenient  management  of  the  gen- 
eral interest  of  the  united  states,  delegates  shall  be  annually  ap- 
pointed in  such  manner  as  the  legislature  of  each  state  shall  direct, 
to  meet  in  Congress  on  the  first  Monday  in  November,  in  every 
year,  with  a  power  reserved  to  each  state,  to  recal  its  delegates,  or 
any  of  them,  at  any  time  within  the  year,  and  to  send  others  in  their 
stead,  for  the  remainder  of  the  Year. 

No  state  shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  Members;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years  in  any  term  of  six 
years;  nor  shall  any  person,  being  a  delegate,  be  capable  of  hold- 
ing any  office  under  the  united  states,  for  which  he,  or  another  for 
his  benefit  receives  any  salary,  fees  or  emolument  of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  a  meeting  of  the 
states,  and  while  they  act  as  members  of  the  committee  of  the 
states. 

In  determining  questions  in  the  united  states,  in  Congress  as- 
sembled, each  state  shall  have  one  vote. 


Articles  of  Confederation.  391 

Freedom  of  speech  and  debate  in  congress  shall  not  be  im- 
peached or  questioned  in  any  Court,  or  place  out  of  Congress,  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from 
arrests  and  imprisonments,  during  the  time  of  their  going  to  and 
from,  and  attendance  on  congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Article  VI.  No  state  without  the  Consent  of  the  united  states 
in  congress  assembled,  shall  send  any  embassy  to,  or  receive  any 
embassy  from,  or  enter  into  any  conference,  agreement,  alliance  or 
treaty  with  any  King  prince  or  state;  nor  shall  any  person  holding 
any  office  of  profit  or  trust  under  the  united  states,  or  any  of  them, 
accept  of  any  present,  emolument,  office  or  title  of  any  kind  what- 
ever from  any  king,  prince  or  foreign  state ;  nor  shall  the  united 
states  in  congress  assembled,  or  any  of  them,  grant  any  title  of 
nobility. 

No  two  or  more  states  shall  enter  into  any  treaty,  confederation 
or  alliance  whatever  between  them,  without  the  consent  of  the  united 
states  in  congress  assembled,  specifying  accurately  the  purpose  for 
which  the  same  is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  state  shall  lay  any  imposts  or  duties,  which  may  interfere 
with  any  stipulations  in  treaties,  entered  into  by  the  united  states 
in  congress  assembled,  with  any  king,  prince  or  state,  in  pursuance 
of  any  treaties  already  proposed  by  congress,  to  the  courts  of 
France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  state, 
except  such  number  only,  as  shall  be  deemed  necessary  by  the 
united  states  in  congress  assembled,  for  the  defence  of  such  state, 
or  its  trade  ;  nor  shall  any  body  of  forces  be  kept  up  by  any  state, 
in  time  of  peace,  except  such  number  only,  as  in  the  judgment  of 
the  united  states,  in  congress  assembled,  shall  be  deemed  requisite 
to  garrison  the  forts  necessary  for  the  defence  of  sucn  state ;  but 
every  state  shall  always  keep  up  a  well  regulated  and  disciplined 
miHtia,  sufficiently  armed  and  accoutred,  and  shall  provide  and 
constantly  have  ready  for  use,  in  public  stores,  a  due  number  of 
field  pieces  and  tents,  and  a  proper  quantity  of  arms,  ammunition 
and  camp  equipage. 

No  state  shall  engage  in  any  war  without  the  consent  of  the 
united  states  in  congress  assembled,  unless  such  state  be  actually 
invaded  by  enemies,  or  shall  have  received  certain  advice  of  a 
resolution  being  formed  by  some  nation  of  Indians  to  invade  such 
state,  and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay, 
till  the  united  states  in  congress  assembled  can  be  consulted  :  nor 


392  Appendix  of  Documents. 

shall  any  state  grant  commissions  to  any  ships  or  vessels  of  war, 
nor  letters  of  marque  or  reprisal,  except  it  be  after  a  declaration  of 
war  by  the  united  states  in  congress  assembled,  and  then  only 
against  the  kingdom  or  state  and  the  subjects  thereof,  against 
which  war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  united  states  in  congress  assembled, 
unless  such  state  be  infested  by  pirates,  in  which  case  vessels  of 
war  may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the 
danger  shall  continue,  or  until  the  united  states  in  congress  as- 
sembled shall  determine  otherwise. 

Article  VII.  When  land-forces  are  raised  by  any  state  for 
the  common  defence,  all  officers  of  or  under  the  rank  of  colonel, 
shall  be  appointed  by  the  legislature  of  each  state  respectively  by 
whom  such  forces  shall  be  raised,  or  in  such  manner  as  such  state 
shall  direct,  and  all  vacancies  shall  be  filled  up  by  the  state  which 
first  made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  expences 
that  shall  be  incurred  for  the  common  defence  or  general  welfare, 
and  allowed  by  the  united  states  in  congress  assembled,  shall  be 
defrayed  out  of  a  common  treasury,  which  shall  be  supplied  by  the 
several  states,  in  proportion  to  the  value  of  all  land  within  each 
state,  granted  to  or  surveyed  for  any  Person,  as  such  land  and  the 
buildings  and  improvements  thereon  shall  be  estimated  according 
to  such  mode  as  the  united  states  in  congress  assembled,  shall  from 
time  to  time,  direct  and  appoint.  The  taxes  for  paying  that  pro- 
portion shall  be  laid  and  levied  by  the  authority  and  direction  of  the 
legislatures  of  the  several  states  within  the  time  agreed  upon  by  the 
united  states  in  congress  assembled. 

Article  IX.  The  united  states  in  congress  assembled,  shall 
have  the  sole  and  exclusive  right  and  power  of  determining  on  peace 
and  war,  except  in  the  cases  mentioned  in  the  sixth  article  —  of 
sending  and  receiving  ambassadors  —  entering  into  treaties  and 
alliances,  provided  that  no  treaty  of  commerce  shall  be  made 
whereby  the  legislative  power  of  the  respective  states  shall  be  re- 
strained from  imposing  such  imposts  and  duties  on  foreigners,  as 
their  own  people  are  subjected  to,  or  from  prohibiting  the  exportation 
or  importation  of  any  species  of  goods  or  commodities  whatsoever 
—  of  establishing  rules  for  deciding  in  all  cases,  what  captures  on 
land  or  water  shall  be  legal,  and  in  what  manner  prizes  taken  by 
land  or  naval  forces  in  the  service  of  the  united  states  shall  be  di- 


Articles  of  Confederation. 


393 


vided  or  appropriated  —  of  granting  letters  of  marque  and  reprisal 
in  times  of  peace  —  appointing  courts  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas  and  establishing  courts  for  re- 
ceiving and  determining  finally  appeals  in  all  cases  of  captures,  pro- 
vided that  no  member  of  congress  shall  be  appointed  a  judge  of  any 
of  the  said  courts. 

The  united  states  in  congress  assembled  shall  also  be  the  last 
resort  on  appeal  in  all  disputes  and  differences  now  subsisting  or 
that  hereafter  may  arise  between  two  or  more  states  concerning 
boundary,  jurisdiction  or  any  other  cause  whatever;  which  author- 
ity shall  always  be  exercised  in  the  manner  following.  Whenever 
the  legislative  or  executive  authority  or  lawful  agent  of  any  state  in 
controversy  with  another  shall  present  a  petition  to  congress,  stat- 
ing the  matter  in  question  and  praying  for  a  hearing,  notice  thereof 
shall  be  given  by  order  of  congress  to  the  legislative  or  executive 
authority  of  the  other  state  in  controversy,  and  a  day  assigned  for 
the  appearance  of  the  parties  by  their  lawful  agents,  who  shall  then 
be  directed  to  appoint  by  joint  consent,  commissioners  or  judges  to 
constitute  a  court  for  hearing  and  determining  the  matter  in  ques- 
tion :  but  if  they  cannot  agree,  congress  shall  name  three  persons 
out  of  each  of  the  united  states,  and  from  the  list  of  such  persons 
each  party  shall  alternately  strike  out  one,  the  petitioners  begin- 
ning, until  the  number  shall  be  reduced  to  thirteen  ;  and  from  that 
number  not  less  than  seven,  nor  more  than  nine  names  as  congress 
shall  direct,  shall  in  the  presence  of  congress  be  drawn  out  by  lot, 
and  the  persons  whose  names  shall  be  so  drawn  or  any  five  of  them, 
shall  be  commissioners  or  judges,  to  hear  and  finally  determine  the 
controversy,  so  always  as  a  major  part  of  the  judges  who  shall  hear 
the  cause  shall  agree  in  the  determination  :  and  if  either  party  shall 
neglect  to  attend  at  the  day  appointed,  without  shewing  reasons, 
which  congress  shall  judge  sufficient,  or  being  present  shall  refuse 
to  strike,  the  congress  shall  proceed  to  nominate  three  persons  out 
of  each  state,  and  the  secretary  of  congress  shall  strike  in  behalf  of 
such  party  absent  or  refusing ;  and  the  judgment  and  sentence  of 
the  court  to  be  appointed,  in  the  manner  before  prescribed,  shall 
be  final  and  conclusive  ;  and  if  any  of  the  parties  shall  refuse  to 
submit  to  the  authority  of  such  court,  or  to  appear  or  defend  their 
claim  or  cause,  the  court  shall  nevertheless  proceed  to  pronounce 
sentence,  or  judgment,  which  shall  in  like  manner  be  final  and  deci- 
sive, the  judgment  or  sentence  and  other  proceedings  being  in  either 
case  transmitted  to  congress,  and  lodged  among  the  acts  of  con- 
gress for  the  security  of  the  parties  concerned  :  provided  that  every 
commissioner,  before  he  sits  in  judgment,  shall  take  an  oath  to  be 


394  Appendix  of  Documents. 

administered  by  one  of  the  judges  of  the  supreme  or  superior  court 
,  of  the  state,  where  the  cause  shall  be  tried,  "  well  and  truly  to  hear 
and  determine  the  matter  in  question,  according  to  ihe  best  of  his 
judgment,  without  favour,  affection  or  hope  of  reward:"  provided 
also  that  no  state  shall  be  deprived  of  territory  for  the  benefit  of  the 
united  states. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  states,  whose  jurisdictions  as 
they  may  respect  such  lands,  and  the  states  which  passed  such 
grants  are  adjusted,  the  said  grants  or  either  of  them  being  at  the 
same  time  claimed  to  have  originated  antecedent  to  such  settlement 
of  jurisdiction,  shall  on  the  petition  of  either  party  to  the  congress 
of  the  united  states,  be  finally  determined  as  near  asmaybe  in  the 
same  manner  as  is  before  prescribed  for  deciding  disputes  respect- 
ing territorial  jurisdiction  between  difEerent  states. 

The  united  states  in  congress  assembled  shall  also  have  the  sole 
and  exclusive  right  and  power  of  regulating  the  alloy  and  value  of 
coin  struck  by  their  own  authority,  or  by  that  of  the  respective 
states  —  fixing  the  standard  of  weights  and  measures  throughout 
the  United  States  —  regulating  the  trade  and  manageing  all  affairs 
with  the  Indians,  not  members  of  any  of  the  states,  provided  that 
the  legislative  right  of  any  state  within  its  own  limits  be  not  in- 
fringed or  violated  —  establishing  and  regulating  post-ofiices  from 
one  state  to  another,  throughout  all  the  united  states,  and  exacting 
such  postage  on  the  papers  passing  thro'  the  same  as  may  be  requi- 
site to  defray  the  expences  of  the  said  office  —  appointing  all  officers 
of  the  land  forces,  in  the  service  of  the  united  states,  excepting  regi- 
mental officers  —  appointing  all  the  officers  of  the  naval  forces,  and 
commissioning  all  officers  whatever  in  the  service  of  the  united 
states  — making  rules  for  the  government  and  regulation  of  the  said 
land  and  naval  forces,  and  directing  their  operations. 

The  united  states  in  congress  assembled  shall  have  authority  to 
appoint  a  committee,  to  sit  in  the  recess  of  congress,  to  be  denom- 
inated "A  Committee  of  the  States,"  and  to  consist  of  one  delegate 
from  each  state  ;  and  to  appoint  such  other  committees  and  civil 
officers  as  may  be  necessary  for  manageing  the  general  affairs 
of  the  united  states  under  their  direction  —  to  appoint  one  of  their 
number  to  preside,  provided  that  no  person  be  allowed  to  serve  in 
the  office  of  president  more  than  one  year  in  any  term  of  three 
years  ;  to  ascertain  the  necessary  sums  of  Money  to  be  raised  for 
the  service  of  the  united  states,  and  to  appropriate  and  apply  the 
same  for  defraying  the  public  expences  —  to  borrow  money,  or  emit 
bills  on  the  credit  of  the  united  states,  transmitting  every  half  year 


Articles  of  Confederation.  395 

to  the  respective  states  an  account  of  the  sums  of  money  so  bor- 
rowed or  emitted,  —  to  build  and  equip  a  navy —  to  agree  upon  the 
number  of  land  forces,  and  to  make  requisitions  from  each  state  for 
its  quota,  in  proportion  to  the  number  of  white  inhabitants  in  such 
state ;  which  requisition  shall  be  binding,  and  thereupon  the  legis- 
lature of  each  state  shall  appoint  the  regimental  officers,  raise  the 
men  and  cloath,  arm  and  equip  them  in  a  soldier  like  manner,  at  the 
expence  of  the  united  states  ;  and  the  officers  and  men  so  cloathed, 
armed  and  equipped  shall  march  to  the  place  appointed,  and  within 
the  time  agreed  on  by  the  united  states  in  congress  assembled  :  But 
if  the  united  states  in  congress  assembled  shall,  on  consideration  of 
circumstances  judge  proper  that  any  state  should  not  raise  men,  or 
should  raise  a  smaller  number  than  its  quota,  and  that  any  other 
state  should  raise  a  greater  number  of  men  than  the  quota  thereof, 
such  extra  number  shall  be  raised,  officered,  cloathed,  armed  and 
equipped  in  the  same  manner  as  the  quota  of  such  state,  unless  the 
legislature  of  such  state  shall  judge  that  such  extra  number  cannot 
be  safely  spared  out  of  the  same,  in  which  case  they  shall  raise 
officer,  cloath,  arm  and  equip  as  many  of  such  extra  number  as  they 
judge  can  be  safely  spared.  And  the  officers  and  men  so  cloathed, 
armed  and  equipped,  shall  march  to  the  place  appointed,  and  within 
the  time  agreed  on  by  the  united  states  in  congress  assembled. 

The  united  states  in  congress  assembled  shall  never  engage  in  a 
war,  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor 
enter  into  any  treaties  or  alHances,  nor  coin  money,  nor  regulate 
the  value  thereof,  nor  ascertain  the  sums  and  expences  necessary 
for  the  defence  and  welfare  of  the  united  states,  or  any  of  them,  nor 
emit  bills,  nor  borrow  money  on  the  credit  of  the  united  states,  nor 
appropriate  money,  nor  agree  upon  the  number  of  vessels  of  war, 
to  be  built  or  purchased,  or  the  number  of  land  or  sea  forces  to  be 
raised,  nor  appoint  a  commander  in  chief  of  the  army  or  navy,  un- 
less nine  states  assent  to  the  same :  nor  shall  a  question  on  any 
other  point,  except  for  adjourning  from  day  to  day  be  determined, 
unless  by  the  votes  of  a  majority  of  the  united  states  in  congress 
assembled. 

The  congress  of  the  united  states  shall  have  power  to  adjourn  to 
any  time  within  the  year,  and  to  any  place  within  the  united  states, 
so  that  no  period  of  adjournment  be  for  a  longer  duration  than  the 
space  of  six  months,  and  shall  publish  the  Journal  of  their  proceed- 
ings monthly,  except  such  parts  thereof  relating  to  treaties,  alliances 
or  military  operations,  as  in  their  judgment  require  secrecy;  and 
the  yeas  and  nays  of  the  delegates  of  each  state  on  any  question 
shall  be  entered  on  the  Journal,  when  it  is  desired  by  any  delegate ; 


396  Appendix  of  Documents. 

and  the  delegates  of  a  state,  or  any  of  them,  at  his  or  their  request 
shall  be  furnished  with  a  transcript  of  the  said  Journal,  except  such 
parts  as  are  above  excepted,  to  lay  before  the  legislatures  of  the 
several  states. 

Article  X.  The  committee  of  the  states,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  congress,  such  of  the 
powers  of  congress  as  the  united  states  in  congress  assembled,  by 
the  consent  of  nine  states,  shall  from  time  to  time  think  expedient 
to  vest  them  with  ;  provided  that  no  power  be  delegated  to  the  said 
committee,  for  the  exercise  of  which,  by  the  articles  of  confedera- 
tion, the  voice  of  nine  states  'n  the  congress  of  the  united  states 
assembled  is  requisite. 

Article  XI.  Canada  acceding  to  this  confederation,  and  join- 
ing in  the  measures  of  the  united  states,  shall  be  admitted  into,  and 
entitled  to  all  the  advantages  of  this  union :  but  no  other  colony 
shall  be  admitted  into  the  same,  unless  such  admission  be  agreed 
to  by  nine  states. 

Article  XII.  All  bills  of  credit  emitted,  monies  borrowed 
and  debts  contracted  by,  or  under  the  authority  of  congress,  before 
the  assembling  of  the  united  states,  in  pursuance  of  the  present 
confederation,  shall  be  deemed  and  considered  as  a  charge  against 
the  united  states,  for  payment  and  satisfaction  whereof  the  said 
united  states,  and  the  public  faith  are  hereby  solemnly  pledged. 

Article  XIII.  Every  state  shall  abide  by  the  determinations 
of  the  united  states  in  congress  assembled,  on  all  questions  which 
by  this  confederation  are  submitted  to  them.  And  the  Articles  of 
this  confederation  shall  be  inviolably  observed  by  every  state,  and 
the  union  shall  be  perpetual ;  nor  shall  any  alteration  at  any  time 
hereafter  be  made  in  any  of  them  ;  unless  such  alteration  be  agreed 
to  in  a  congress  of  the  united  states,  and  be  afterwards  confirmed 
by  the  legislatures  of  every  state. 

Bn&  TKUbcreaS  it  hath  pleased  the  Great  Governor  of  the 
World  to  incline  the  hearts  of  the  legislatures  we  respectively  rep- 
resent in  congress,  to  approve  of,  and  to  authorize  us  to  ratify  the 
said  articles  of  confederation  and  perpetual  union.  linOW  ^C  that 
we  the  undersigned  delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in  the  name  and 
in  behalf  of  our  respective  constituents,  fully  and  entirely  ratify 


Articles  of  Confederation.  397 

and  confirm  each  and  every  of  the  said  articles  of  confederation 
and  perpetual  union,  and  all  and  singular  the  matters  and  things 
therein  contained  :  And  we  do  further  solemnly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall  abide  by  the 
determinations  of  the  united  states  in  congress  assembled,  on  all 
questions,  which  by  the  said  confederation  are  submitted  to  them. 
And  that  the  articles  thereof  shall  be  inviolably  observed  by  the 
states  we  respectively  represent,  and  that  the  union  shall  be  per- 
petual. In  witness  whereof  we  have  hereunto  set  our  hands  in 
Congress.  Done  at  Philadelphia  in  the  state  of  Pennsylvania  the 
ninth  Day  of  July  in  the  Year  of  our  Lord  one  Thousand  seven 
Hundred  and  Seventy  eight,  and  in  the  third  year  of  the  independ- 
ence of  America. 

[Signatures.] 


THE   NORTHWEST   ORDINANCE    (1787). 

[While  the  Convention  which  framed  the  Federal  Constitution  was 
sitting  in  Philadelphia,  the  Continental  Congress  sitting  in  New  York 
July  13,  1787,  adopted  the  following  Ordinance,  reported  by  a  com- 
mittee of  which  Nathan  Dane,  of  Massachusetts,  was  chairman.  The 
territory  described  was  acquired  by  cession  from  Virginia  in  1784  and 
included  the  territory  of  the  present  States  of  Ohio,  Indiana,  Illinois, 
Michigan,  and  Wisconsin,  and  a  part  of  that  of  Minnesota.  The  text  is 
taken  ixoxa  Journals  of  Congress  (XCL.  of  1787),  XII.  85-93.] 

An   Ordinance  for  the   Government  of    the   Territory  of  the 
United  States  North-West  of  the  River  Ohio. 

Be  it  ordained  by  the  United  States  in  Congress  assembled, 
That  the  said  territory,  for  the  purposes  of  temporary  government, 
be  one  district;  subject,  however,  to  be  divided  into  two  districts, 
as  future  circumstances  may,  in  the  opinion  of  Congress,  make  it 
expedient. 

Be  it  ordained  by  the  authority  aforesaid,  That  the  estates  both 
of  resident  and  non-resident  proprietors  in  the  said  territory,  dying 
intestate,  shall  descend  to,  and  be  distributed  among  their  children, 
and  the  descendants  of  a  deceased  child  in  equal  parts ;  the  de- 
scendants of  a  deceased  child  or  grandchild,  to  take  the  share  of 
their  deceased  parent  in  equal  parts  among  them:  And  where  there 
shall  be  no  children  or  descendants,  then  in  equal  parts  to  the  next 
of  kin,  in  equal  degree;  and,  among  collaterals,  the  children  of  a 
deceased  brother  or  sister  of  the  intestate,  shall  have  in  equal  parts 
among  them  their  deceased  parents  share  ;  and  there  shall  in  no 
case  be  a  distinction  between  kindred  of  the  whole  and  half-blood, 
saving  in  all  cases  to  the  widow  of  the  intestate,  her  third  part  of 
the  real  estate  for  life,  and  one  third  part  of  the  personal  estate  ; 
and  this  law  relative  to  descents  and  dower,  shall  remain  in  full 
force  until  altered  by  the  legislature  of  the  district.  —  And  until  the 
governor  and  judges  shall  adopt  laws  as  hereinafter  mentioned,  es- 
tates in  the  said  territory  may  be  devised  or  bequeathed  by  wills  in 

398 


Northwest  Ordinance.  399 

writing,  signed  and  sealed  by  him  or  her,  in  whom  the  estate  may 
be  (being  of  full  age)  and  attested  by  three  witnesses;  —  and  real 
estates  may  be  conveyed  by  lease  and  release,  or  bargain  and  sale, 
signed,  sealed,  and  delivered  by  the  person  being  of  full  age,  in 
whom  the  estate  may  be,  and  attested  by  two  witnesses,  provided 
such  wills  be  duly  proved,  and  such  conveyances  be  acknowledged, 
or  the  execution  thereof  duly  proved,  and  be  recorded  within  one 
year  after  proper  magistrates,  courts,  and  registers  shall  be  ap- 
pointed for  that  purpose  ;  and  personal  property  maybe  transferred 
by  delivery ;  saving,  however,  to  the  French  and  Canadian  inhabit- 
ants, and  other  settlers  of  the  Kaskaskies,  St.  Vincent's,  and  the 
neighbouring  villages,  who  have  heretofore  professed  themselves 
citizens  of  Virginia,  their  laws  and  customs  now  in  force  among 
them,  relative  to  the  descent  and  conveyance  of  property. 

Be  it  ordained  by  the  authority  aforesaid.  That  there  shall  be 
appointed  from  time  to  time,  by  Congress,  a  governor,  whose 
commission  shall  continue  in  force  for  the  term  of  three  years,  un- 
less sooner  revoked  by  Congress,  he  shall  reside  in  the  district, 
and  have  a  freehold  estate  therein,  in  one  thousand  acres  of  land, 
while  in  the  exercise  of  his  office. 

There  shall  be  appointed,  from  time  to  time,  by  Congress,  a 
secretary,  whose  commission  shall  continue  in  force  for  four  years, 
unless  sooner  revoked ;  he  shall  reside  in  the  district,  and  have  a 
freehold  estate  therein,  in  five  hundred  acres  of  land,  while  in  the 
exercise  of  his  office ;  it  shall  be  his  duty  to  keep  and  preserve  the 
acts  and  laws  passed  by  the  legislature,  and  the  public  records  of 
the  district,  and  the  proceedings  of  the  governor  in  his  executive 
department;  and  transmit  authentic  copies  of  such  acts  and  pro- 
ceedings,, every  six  months,  to  the  secretary  of  Congress  :  There 
shall  also  be  appointed  a  court  to  consist  of  three  judges,  any  two 
of  whom  to  form  a  court,  who  shall  have  a  common-law  jurisdiction, 
and  reside  in  the  district,  and  have  each  therein  a  freehold  estate 
in  five  hundred  acres  of  land,  while  in  the  exercise  of  their 
offices ;  and  their  commissions  shall  continue  in  force  during 
good  behavior. 

The  governor  and  judges,  or  a  majority  of  them,  shall  adopt  and 
publish  in  the  district,  such  laws  of  the  original  states,  criminal  and 
civil,  as  may  be  necessary,  and  best  suited  to  the  circumstances  of 
the  district,  and  report  them  to  Congress,  from  time  to  time;  which 
laws  shall  be  in  force  in  the  district  until  the  organization  of  the 
general  assembly  therein,  unless  disapproved  of  by  Congress ;  but 
afterwards  the  legislature  shall  have  authority  to  alter  them  as 
they  shall  think  fit. 


400  Appendix  of  Documents. 

The  governor,  for  the  time  being,  shall  be  commander  in  chief 
of  the  militia,  appoint  and  commission  all  officers  in  the  same,  be- 
low the  rank  of  general  officers;  all  general  officers  shall  be  ap- 
poirited  and  commissioned  by  Congress. 

Previous  to  the  organization  of  the  general  assembly,  the  gov- 
ernor shall  appoint  such  magistrates  and  other  civil  officers,  in 
each  county  or  township,  as  he  shall  find  necessary  for  the  pres- 
ervation of  the  peace  and  good  order  in  the,  same :  After  the 
general  assembly  shall  be  organized,  the  powers  and  duties  of  the 
magistrates  and  other  civil  officers  shall  be  regulated  and  defined 
by  the  said  assembly ;  but  all  magistrates  and  other  civil  officers, 
not  herein  otherwise  directed,  shall,  during  the  continuance  of 
this  temporary  government,  be  appointed  by  the  governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to  be  adopted 
or  made  shall  have  force  in  all  parts  of  the  district,  and  for 
the  execution  of  process,  criminal  and  civil,  the  governor  shall 
make  proper  divisions  thereof  —  and  he  shall  proceed,  from  time 
to  time,  as  circumstances  may  require,  to  lay  out  the  parts  of  the 
district  in  which  the  Indian  titles  shall  have  been  extinguished, 
into  counties  and  townships,  subject,  however,  to  such  alterations 
as  may  thereafter  be  made  by  the  legislature. 

So  soon  as  there  shall  be  five  thousand  free  male  inhabitante  of 
full  age,  in  the  district,  upon  giving  proof  thereof  to  the  gov- 
ernor, they  shall  receive  authority,  with  time  and  place,  to  elect 
representatives  from  their  counties  or  townships,  to  represent  them 
in  the  general  assembly :  provided  that  for  every  five  hundred  free 
male  inhabitants,  there  shall  be  one  representative,  and  so  on  pro- 
gressively with  the  number  of  free  male  inhabitants  shall  the  right' 
of  representation  increase,  until  the  number  of  representatives  shall 
amount  to  twenty-five  ;  after  which  the  number  and  proportion  of 
representatives  shall  be  regulated  by  the  legislature  :  provided  that 
no  person  be  ehgible  or  qualified  to  act  as  a  representative,  unless 
he  shall  have  been  a  citizen  of  one  of  the  United  States  three  years, 
and  be  a  resident  in  the  district,  or  unless  he  shall  have  resided  in 
the  district  three  years  ;  and,  in  either  case,  shall  likewise  hold  in 
his  own  right,  in  fee  simple,  two  hundred  acres  of  land  within  the 
same :  provided  also,  that  a  freehold  in  fifty  acres  of  land  in  the 
district,  having  been  a  citizen  of  one  of  the  states,  and  being  resi- 
dent in  the  district,  or  the  like  freehold  and  two  years  residence  in 
the  district  shall  be  necessary  to  qualify  a  man  as  an  elector  of  a 
representative. 

The  representatives  thus  elected,  shall  serve  for  the  term  of  two 
years;   and  in  case  of  the  death  of  a  representative,  or  removal 


Northwest  Ordinance.  401 

from  office,  the  governor  shall  issue  a  writ  to  the  county  or  town- 
ship, for  which  he  was  a  member,  to  elect  another  in  his  stead,  to 
serve  for  the  residue  of  the  term. 

The  general  assembly,  or  legislature,  shall  consist  of  the  gov- 
ernor, legislative  council,  and  a  house  of  representatives.  The 
legislative  council  shall  consist  of  five  members,  to  continue  in 
office  five  years,  unless  sooner  removed  by  Congress;  any  three  of 
whom  to  be  a  quorum :  and  the  members  of  the  council  shall  be 
nominated  and  appointed  in  the  following  manner,  to  wit :  As  soon 
as  representatives  shall  be  elected,  the  governor  shall  appoint  a 
time  and  place  for  them  to  meet  together,  and,  when  met,  they 
shall  nominate  ten  persons,  residents  in  the  district,  and  each  pos- 
sessed of  a  freehold  in  five  hundred  acres  of  land,  and  return  their 
names  to  Congress ;  five  of  whom  Congress  shall  appoint  and  com- 
mission to  serve  as  aforesaid ;  and,  whenever  a  vacancy  shall  happen 
in  the  council,  by  death  or  removal  from  office,  the  house  of  repre- 
sentatives shall  nominate  two  persons,  quahfied  as  aforesaid,  for  each 
vacancy,  and  return  their  names  to  Congress ;  one  of  whom  Congress 
shall  appoint  and  commission  for  the  residue  of  the  term.  And 
every  five  years,  four  months  at  least  before  the  expiration  of  the 
time  of  service  of  the  members  of  council,  the  said  house  shall  nomi- 
nate ten  persons,  qualified  as  aforesaid,  and  return  their  names  to 
Congress ;  five  of  whom  Congress  shall  appoint  and  commission  to 
serve  as  members  of  the  council  five  years,  unless  sooner  removed. 
And  the  governor,  legislative  council,  and  house  of  representatives, 
shall  have  authority  to  make  laws  in  all  cases,  for  the  good  govern- 
ment of  the  district,  not  repugnant  to  the  principles  and  articles  in 
this  ordinance  established  and  declared.  And  all  bills  having 
passed  by  a  majority  in  the  house,  and  by  a  majority  in  the  council, 
shall  be  referred  to  the  governor  for  his  assent ;  but  no  bill  or 
legislative  act  whatever,  shall  be  of  any  force  without  his  assent. 
The  governor  shall  have  power  to  convene,  prorogue  and  dissolve 
the  general  assembly,  when  in  his  opinion  it  shall  be  expedient. 

The  governor,  judges,  legislative  council,  secretary,  and  such 
other  officers  as  Congress  shall  appoint  in  the  district,  shall  take  an 
oath  or  affirmation  of  fidelity,  and  of  office  ;  the  governor  before 
the  president  of  Congress,  and  all  other  officers  before  the  governor. 
As  soon  as  a  legislature  shall  be  formed  in  the  district,  the  council 
and  house  assembled,  in  one  room,  shall  have  authority,  by  joint 
ballot,  to  elect  a  delegate  to  Congress,  who  shall  have  a  seat  in 
Congress,  with  a  right  of  debating,  but  not  of  voting  during  this 
temporary  government. 

And,   for   extending  the   fundamental    principles   of  civil  and 

26 


402  Appendix  of  Documents. 

religious  liberty,  which  form  the  basis  whereon  these  republics, 
their  laws  and  constitutions  are  erected  ;  to  fix  and  establisli  those 
principles  as  the  basis  of  all  laws,  constitutions,  and  governments, 
which  forever  hereafter  shall  be  formed  in  the  said  territory :  to 
provide  also  for  the  estabhshment  of  states,  and  permanent  gov- 
ernment therein,  and  for  their  admission  to  a  share  in  the  federal 
councils  on  an  equal  footing  with  the  original  states,  at  as  early 
periods  as  may  be  consistent  with  the  general  interest: 

It  is  hereby  ordained  and  declared  by  the  authority  aforesaid, 
That  the  following  articles  shall  be  considered  as  articles  of  com- 
pact between  the  original  states  and  the  people  and  states  in  the 
said  territory,  and  forever  remain  unalterable,  unless  by  common 
consent,  to  wit : 

Article  the  first.  No  person,  demeaning  himself  in  a  peace- 
able and  orderly  manner,  shall  ever  be  molested  on  account  of  his 
mode  of  worship  or  religious  sentiments,  in  the  said  territory. 

Article  the  second.  The  inhabitants  of  the  said  territory,  shall 
always  be  entitled  to  the  benefits  of  the  writ  of  habeas  corpus, 
and  of  the  trial  by  jury ;  of  a  proportionate  representation  of  the 
people  in  the  legislature:  and  of  judicial  proceedings  according  to 
the  course  of  the  common  law.  All  persons  shall  be  bailable, 
unless  for  capital  offences,  where  the  proof  shall  be  evident,  or 
the  presumption  great.  All  fines  shall  be  moderate;  and  no 
cruel  or  unusual  punishments  shall  be  inflicted.  No  man  shall 
be  deprived  of  his  liberty  or  property,  but  by  the  judgment  of 
his  peers,  or  the  law  of  the  land;  and,  should  the  public  exigencies 
make  it  necessary,  for  the  common  preservation,  to  take  any  per- 
son's property,  or  to  demand  his  particular  services,  full  compen- 
sation shall  be  made  for  the  same.  And  in  the  just  preservation  of 
rights  and  property,  it  is  understood  and  declared,  that  no  law 
ought  ever  to  be  made,  or  have  force  in  the  said  territory,  that 
shall  in  any  manner  whatever  interfere  with,  or  aflfect  private  con- 
tracts or  engagements,  bona  fide,  and  without  fraud  previously 
formed. 

Article  the  third.  Religion,  morality  and  knowledge,  being 
necessary  to  good  government  and  the  happiness  of  mankind, 
schools  and  the  means  of  education  shall  forever  be  encouraged. 
The  utmost  good  faith  shall  always  be  observed  towards  the 
Indians;  their  lands  and  property  shall  never  be  taken  from  them 
without  their  consent;  and,  in  their  property,  rights  and  liberty, 
they  never  shall  be  invaded  or  disturbed,  unless  in  just  and  lawful 
wars  authorized  by  Congress;  but  laws  founded  in  justice  and 
humanity  shall  from  time  to  time  be  made,  for  preventing  wrongs 


Northwest  Ordinance.  403 

being  done  to  them,  and  for  preserving  peace  and  friendship  with 
them. 

Article  the  fourth.  The  said  territory,  and  the  states  which 
may  be  formed  therein,  shall  forever  remain  a  part  of  this  con- 
federacy of  the  United  States  of  America,  subject  to  the  articles  of 
confederation,  and  to  such  alterations  therein,  as  shall  be  constitu- 
tionally made ;  and  to  all  the  acts  and  ordinances  of  the  United 
States  in  Congress  assembled,  conformable  thereto.  The  inhabi- 
tants and  setders  in  the  said  territory,  shall  be  subject  to  pay  a 
part  of  the  federal  debts,  contracted  or  to  be  contracted,  and  a  pro- 
portional part  of  the  expences  of  government,  to  be  apportioned  on 
them  by  Congress,  according  to  the  same  common  rule  and  meas- 
ure, by  which  apportionments  thereof  shall  be  made  on  the  other 
states ;  and  the  taxes  for  paying  their  proportion,  shall  be  laid  and 
levied  by  the  authority  and  direction  of  the  legislatures  of  the 
district  or  districts  or  new  states,  as  in  the  original  states,  within 
the  time  agreed  upon  by  the  United  States  in  Congress  assembled. 
The  legislatures  of  those  districts  or  new  states,  shall  never  inter- 
fere with  the  primary  disposal  of  the  soil  by  the  United  States  in 
Congress  assembled,  nor  with  any  regulations  Congress  may  find 
necessary  for  securing  the  title  in  such  soil  to  the  bona  fide 
purchasers.  No  tax  shall  be  imposed  on  lands  the  property  of  the 
United  States;  and,  in  no  case  shall  non-resident  proprietors  be 
taxed  higher  than  residents.  The  navigable  waters  leading  into 
the  Mississippi  and  St.  Lawrence,  and  the  carrying  places  between 
the  same,  shall  be  common  highways,  and  forever  free,  as  well 
to  the  inhabitants  of  the  said  territory,  as  to  the  citizens  of  the 
United  States,  and  those  of  any  other  states  that  may  be  admitted 
into  the  confederacy,  without  any  tax,  impost,*or  duty  therefor. 

Article  the  fifth.  There  shall  be  formed  in  the  said  territory, 
not  less  than  three,  nor  more  than  five  states ;  and  the  boundaries 
of  the  states,  as  soon  as  Virginia  shall  alter  her  act  of  cession,  and 
consent  to  the  same,  shall  become  fixed  and  established  as  follows, 
to  wit:  The  western  state  in  the  said  territory,  shall  be  bounded 
by  the  Mississippi,  the  Ohio  and  Wabash  rivers;  a  direct  line 
drawn  from  the  Wabash  and  Post  Vincents,  due  north  to  the  ter- 
ritorial line  between  the  United  States  and  Canada;  and,  by  the 
said  territorial  line  to  the  lake  of  the  Woods  and  Mississippi.  The 
middle  state  shall  be  bounded  by  the  said  direct  line,  the  Wabash 
from  Post  Vincents,  to  the  Ohio ;  by  the  Ohio,  by  a  direct  line 
drawn  due  north  from  the  mouth  of  the  Great  Miami,  to  the  said 
territorial  line,  and  by  the  said  territorial  line.  The  eastern  state 
shall  be  bounded  by  the  last  mentioned  direct  line,  the  Ohio,  Penn- 


404  Appendix  of  Documents. 

sylvania,  and  the  said  territorial  line:  Provided  however,  and  it  is 
further  understood  and  declared,  that  the  boundaries  of  these  three 
states  shall  be  subject  so  far  to  be  altered,  that  if  Congress  shall 
hereafter  find  it  expedient,  they  shall  have  authority  to  form  one  or 
two  states  in  that  part  of  the  said  territory  which  lies  north  of  an 
east  and  west  line  drawn  through  the  Southerly  bend  or  extreme 
of  lake  Michigan.  And  whenever  any  of  the  said  states,  shall 
have  sixty  thousand  free  inhabitants  therein,  such  state  shall  be 
admitted,  by  its  delegates,  into  the  Congress  of  the  United  States, 
on  an  equal  footing  with  the  original  states,  in  all  respects  what- 
ever; and  shall  be  at  liberty  to  form  a  permanent  constitution 
and  state  government :  provided  the  constitution  and  government 
so  to  be  formed,  shall  be  republican,  and  in  conformity  to  the 
principles  contained  in  these  articles ;  and  so  far  as  it  can  be 
consistent  with  the  general  interest  of  the  confederacy,  such  ad- 
mission shall  be  allowed  at  an  earlier  period,  and  when  there 
may  be  a  less  number  of  free  inhabitants  in  the  state  than  sixty 
thousand. 

Article  the  sixth.  There  shall  be  neither  slavery  nor  involun- 
tary servitude  in  the  said  territory,  otherwise  than  in  the  punish- 
ment of  crimes,  whereof  the  party  shall  have  been  duly  convicted  : 
provided  always,  that  any  person  escaping  into  the  same,  from 
whom  labour  or  service  is  lawfully  claimed  in  any  one  of  the  origi- 
nal states,  such  fugitive  may  be  lawfully  reclaimed,  and  conveyed 
to  the  person  claiming  his  or  her  labour  or  service  as  aforesaid. 

Be  it  ordained  by  the  authority  aforesaid.  That  the  resolutions 
of  the  23d  of  April,  1784,  relative  to  the  subject  of  this  ordinance, 
be,  and  the  same  are  hereby,  repealed  and  declared  null  and  void. 

Done  &c. 


G. 

CONSTITUTION    OF   THE   UNITED    STATES 
OF   AMERICA*   (1789)!. 

[The  following  text  of  the  P^ederal  Constitution,  including  the  Amend- 
ments thereto,  is  reprinted  with  the  accompanying  note  from  American 
History  Lea/lets,  No.  8,  in  preparing  which  the  original  parchment  rolls 
were  compared.] 

We  the  People  of  the  United  States,  in  Order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tranquility, 
provide  for  the  common  defence,  promote  the  general  Welfare, 
and  secure  the  Blessings  of  Liberty  to  ourselves  and  our  Pos- 
terity, do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America. 

ARTICLE.    L 

Section,  i.  All  legislative  Powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist  of  a 
Senate  and  House  of  Representatives. 

Section.  2.  [§  i.]  The  House  of  Representatives  shall  be 
composed  of  Members  chosen  every  second  Year  by  the  People  of 
the  several  States,  and  the  Electors  in  each  State  shall  have  the 
Qualifications  requisite  for  Electors  of  the  most  numerous  Branch 
of  the  State  Legislature,  t 

[§  2.]  No  Person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  Age  of  twenty  five  Years,  and  been  seven  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be 
an  Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

[§  3.]  Representatives  and  direct  Taxes  shall  be  apportioned 
among  the  several  States  which  maybe  included  within  this  Union, 
according  to  their  respective  M umbers,  [which  shall  be  determined 

*  There  is  no  title  in  the  original  manuscript. 

t  The  ninth  state  ratified  June,  21,  1788.     The  government  provided 
for  went  into  operation  March  4,  1789. 
I  Modified  by  Fourteenth  Amendment. 

405 


4o6  Appendix  of  Documents. 

by  adding  to  the  whole  Number  of  free  Persons,]  including  those 
bound  to  Service  for  a  Term  of  Years,  and  excluding  Indians  not 
taxed,  [three  fifths  of  all  other  Persons].*  The  actual  Enumera- 
tion shall  be  made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every  subsequent  Term 
of  ten  Years,  in  such  Manner  as  they  shall  by  Law  direct.  The 
Number  of  Representatives  shall  not  exceed  one  for  every  thirty 
Thousand,  but  each  State  shall  have  at  Least  one  Representative; 
[and  until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts  eight, 
Rhode-Island  and  Providence  Plantations  one,  Connecticut  five, 
New- York  six,  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten.  North  Carolina  five,  South 
Carolina  five,  and  Georgia  three.]  f 

[§  4.]  When  vacancies  happen  in  the  Representation  from  any 
State,  the  Executive  Authority  thereof  shall  issue  Writs  of  Election 
to  fill  such  Vacancies. 

[§  5.]  The  House  of  Representatives  shall  chuse  their  Speaker 
and  other  Ofiicers;  and  shall  have  the  sole  Power  of  Impeachment. 

Section.  3.  [  §  i.]  The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  chosen  by  the  Legisla- 
ture thereof,  for  six  Years ;  and  each  Senator  shall  have  one  Vote. 

[§  2.]  Immediately  after  they  shall  be  assembled  in  Consequence 
of  the  first  Election,  they  shall  be  divided  as  equally  as  may  be 
into  three  Classes.  The  Seats  of  the  Senators  of  the  first  Class 
shall  be  vacated  at  the  Expiration  of  the  second  Year,  of  the 
second  Class  at  the  Expiration  of  the  fourth  Year,  and  of  the  third 
Class  at  the  Expiration  of  the  sixth  Year,  so  that  one  third  may  be 
chosen  every  second  Year;  and  if  Vacancies  happen  by  Resig- 
nation, or  otherwise,  during  the  Recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  Appointments 
until  the  next  Meeting  of  the  Legislature,  which  shall  then  fill  such 
Vacancies. 

[§  3-]  No  Person  shall  be  a  Senator  who  shall  not  have  attained 
to  the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

[§  4.]  The  Vice  President  of  the  United  States  shall  be  Presi- 
dent of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 

*  Superseded  by  Fourteenth  Amendment, 
t  Temporary  clause. 


Federal  Constitution.  407 

[§  5.]  The  Senate  shall  chuse  their  other  Officers,  and  also  a 
President  pro  tempore,  in  the  Absence  of  the  Vice  President,  or 
when  he  shall  exercise  the  Office  of  President  of  the  United 
States. 

[§  6.]  The  Senate  shall  have  the  sole  Power  to  try  all  Impeach- 
ments. When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or 
Affirmation.  When  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  shall  preside  :  And  no  Person  shall  be  convicted 
without  the  Concurrence  of  two  thirds  of  the  Members  present. 

[§  7.]  Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  disqualification  to  hold 
and  enjoy  any  Office  of  honor,  Trust  or  Profit  under  the  United 
States :  but  the  Party  convicted  shall  nevertheless  be  liable  and 
subject  to  Indictment,  Trial,  Judgment  and  Punishment,  according 
to  Law. 

Section.  4.  [§  i.]  The  Times,  Places  and  Manner  of  holding 
Elections  for  Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof;  but  the  Congress  may  at 
any  time  by  Law  make  or  alter  such  Regulations,  except  as  to  the 
Places  of  chusing  Senators. 

[§  2.]  The  Congress  shall  assemble  at  least  once  in  every  Year, 
and  such  Meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  Law  appoint  a  different  Day, 

Section.  5.  [§  i.]  Each  House  shall  be  the  Judge  of  the  Elec- 
tions, Returns  and  Qualifications  of  its  own  Members,  and  a 
Majority  of  each  shall  constitute  a  Quorum  to  do  Business  ;  but  a 
smaller  Number  may  adjourn  from  day  to  day,  and  may  be  autho- 
rized to  compel  the  attendance  of  absent  Members,  in  such  Manner, 
and  under  such  Penalties  as  each  House  may  provide. 

[§  2.]  Each  House  may  determine  the  Rules  of  its  Proceedings, 
punish  its  Members  for  Disorderly  Behaviour,  and,  with  the  Con- 
currence  of  two  thirds,  expel  a  Member. 

[§  3.]  Each  House  shall  keep  a  Journal  of  its  Proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  Parts  as  may 
in  their  Judgment  require  Secrecy ;  and  the  Yeas  and  Nays  of  the 
Members  of  either  House  on  any  question  shall,  at  the  Desire  of 
one  fifth  of  those  Present,  be  entered  on  the  Journal. 

[§  4.]  Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  Place  than  that  in  which  the  two  Houses 
shall  be  sitting. 

Section.  6.  [§  i.]  The  Senators  and  Representatives  shall  re- 
ceive a  Compensation  for  their  Services,  to  be  ascertained  by  Law, 


4o8  Appendix  of  Documents. 

and  paid  out  ot  the  Treasury  of  the  United  States.  They  shall  in 
all  Cases,  except  Treason,  Felony  and  Breach  of  the  Peace,  be 
privileged  from  Arrest  during  their  Attendance  at  the  Session  of 
their  respective  Houses,  and  in  going  to  and  returning  from  the 
same  ;  and  for  any  Speech  or  Debate  in  either  House,  they  shall 
not  be  questioned  in  any  other  Place. 

[§  2.]  No  Senator  or  Representative  shall,  during  the  Time  for 
which  he  was  elected,  be  appointed  to  any  civil  Office  under  the 
Authority  of  the  United  States,  which  shall  have  been  created,  or 
the  Emoluments  whereof  shall  have  been  encreased  during  such 
time;  and  no  Person  holding  any  Office  under  the  United  States, 
shall  be  a  Member  of  either  House  during  his  Continuance  in 
Office. 

Section.  7.  [§  i.]  All  Bills  for  raising  Revenue  shall  originate 
in  the  House  of  Representatives  ;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other  Bills. 

[§  2.]  Every  Bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate,  shall,  before  it  become  a  Law,  be  pre- 
sented to  the  President  of  the  United  States  :  If  he  approve'  he 
shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objections  to 
that  House  in  which  it  shall  have  originated,  who  shall  enter  the 
Objections  at  large  on  their  Journal,  and  proceed  to  reconsider  it. 
If  after  such  Reconsideration  two  thirds  of  that  House  shall  agree 
to  pass  the  Bill,  it  shall  be  sent,  together  with  the  Objections,  to 
the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and 
if  approved  by  two  thirds  of  that  House,  it  shall  become  a  Law. 
But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  determined 
by  yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and 
against  the  Bill  shall  be  entered  on  the  Journal  of  each  House 
respectively.  If  any  Bill  shall  not  be  returned  by  the  President 
within  ten  Days  (Sundays  excepted)  after  it  shall  have  been  pre- 
sented to  him,  the  same  shall  be  a  Law,  in  like  Manner  as  if  he  had 
signed  it,  unless  the  Congress  by  their  Adjournment  prevent  its 
Return,  in  which   Case  it  shall  not  be  a  Law. 

[§  3.]  Every  Order,  Resolution,  or  Vote  to  which  the  Concur- 
rence of  the  Senate  and  House  of  Representatives  may  be  neces- 
sary (except  on  a  question  of  Adjournment)  shall  be  presented  to 
the  President  of  the  United  States  ;  and  before  the  same  shall  take 
Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of  Repre- 
sentatives, according  to  the  Rules  and  Limitations  prescribed  in 
the  Case  of  a  Bill. 

Section.  8.^  The  Congress  shall  have  Power  [  §1.]    To  lay  and 


Federal  Constitution.  409 

collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts  and 
provide  for  the  common  Defence  and  general  Welfare  of  the 
United  States  ;  but  all  Duties,  Imposts  and  Excises  shall  be 
uniform  throughout  the  United  States  ; 

[§  2.]   To  borrow  Money  on  the  credit  of  the  United  States; 

[§  3-]  To  regulate  Commerce  with  foreign  Nations,  and  among 
the  several  States,  and  with  the  Indian  Tribes ; 

[§  4.]  To  establish  an  uniform  Rule  of  Naturalization,  and 
uniform  Laws  on  the  subject  of  Bankruptcies  throughout  the 
United  States; 

[§  5.]  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  and  Measures  ; 

[§  6.]  To  provide  for  the  Punishment  of  counterfeiting  the  Securi- 
ties and  current  coin  of  the  United  States ; 

[§  7,]   To  establish  Post  Offices  and  post  Roads  ; 

[§  8.]  To  promote  the  Progress  of  Science  and  useful  Arts,  by 
securing  for  limited  Times  to  Authors  and  Inventors  the  exclusive 
Right  to  their  respective  Writings  and  Discoveries  ; 

[§  9.]   To  constitute  Tribunals  inferior  to  the  supreme  Court; 

[§  10.]  To  define  and  Punish  Piracies  and  Felonies  committed 
on  the  high  Seas,  and  Offences  against  the  Law  of  Nations; 

[§  II.]  To  declare  War,  grant  Letters  of  Marque  and  Reprisal, 
and  make  Rules  concerning  Captures  on  Land  and  Water ; 

[§  12.]  To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  two  Years ; 

[§  13.]   To  provide  and  maintain  a  Navy  ; 

[§  14.]  To  make  Rules  for  the  Government  and  Regulation  of 
the  land  and  naval  Forces  ; 

[§  15.]  To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel  Invasions; 

[§  16.]  To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be  employed 
in  the  Service  of  the  United  States,  reserving  to  the  States  respec- 
tively, the  Appointment  of  the  Officers,  and  the  Authority  of  train- 
ing the  Militia  according  to  the  discipline  prescribed  by  Congress ; 

[§  17.]  To  exercise  exclusive  Legislation  in  all  Cases  whatso- 
ever, over  such  District  (not  exceeding  ten  Miles  square)  as  may, 
by  Cession  of  particular  States,  and  the  Acceptance  of  Congress, 
become  the  Seat  of  the  Government  of  the  United  States,  and  to 
exercise  like  Authority  over  all  Places  purchased  by  the  Consent 
of  the  Legislature  of  the  State  in  which  the  same  shall  be,  for  the 
Erection  of  Forts,  Magazines,  Arsenals.  dock-Yards,  and  other 
And 


41  o  Appendix  of  Documents. 

[§  1 8.]  To  make  all  Laws  which  shall  be  necessary  and  proper 
for  carrying  into  Execution  the  foregoing  Powers,  and  all  other 
Powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof. 

Section  9.  [§  i.]  [The  Migration  or  Importation  of  such  Per- 
sons as  any  of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  Year  one 
thousand  eight  hundred  and  eight,  but  a  Tax  or  duty  may  be  im- 
posed on  such  Importation,  not  exceeding  ten  dollars  for  each 
Person.]* 

[§  2.]  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be 
suspended,  unless  when  in  Cases  of  Rebellion  or  Invasion  the  pub- 
lic Safety  may  require  it. 

'[§  3-]   No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed.f 

[§  4.]  No  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless 
in  Proportion  to  the  Census  or  Enumeration  herein  before  directed 
to  be  taken. 

[§  5.]  No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from 
any  State. 

[§  6.]  No  Preference  shall  be  given  by  any  Regulation  of  Com- 
merce or  Revenue  to  the  Ports  of  one  State  over  those  of  another : 
nor  shall  Vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  Duties  in  another. 

[§  7.]  No  Money  shall  be  drawn  from  the  Treasury,  but  in 
Consequence  of  Appropriations  made  by  Law;  and  a  regular 
Statement  and  Account  of  the  Receipts  and  Expenditures  of  all 
pubiic  Money  shall  be  published  from  time  to  time. 

[§  8.]  No  Title  of  Nobility  shall  be  granted  by  the  United  States  : 
And  no  Person  holding  any  Office  of  Profit  or  Trust  under  them, 
shall,  without  the  Consent  of  the  Congress,  accept  of  any  present, 
Emolument,  Office,  or  Title,  of  any  kind  whatever,  from  any  King, 
Prince,  or  foreign  State.J 

Section  10.  [§  i.]  No  State  shall  enter  into  any  Treaty,  Alli- 
ance, or  Confederation;  grant  Letters  of  Marque  and  Reprisal; 
coin  Money ;  emit  Bills  of  Credit ;  make  any  Thing  but  gold  and 
silver  Coin  a  Tender  in  Payment  of  Debts ;  pass  any  Bill  of  At- 
tainder, ex  post  facto  Law,  or  Law  impairing  the  Obligation  of 
Contracts,  or  grant  any  Title  of  Nobility. 

[§  2.]   No  State  shall,  without  the  Consent  of  the  Congress,  lay 

*  Temporary  provision. 

t  Extended  by  the  first  eight  Amendments. 

J  Extended  by  Ninth  and  Tenth  Amendments. 


Federal  Constitution.  411 

any  Imposts  or  Duties  on  Imports  or  Exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  Laws  :  and  the 
net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on  Im- 
ports or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the  United 
States ;  and  all  such  Laws  shall  be  subject  to  the  Revision  and 
Controul  of  the  Congress. 

[§  3-]  No  State  shall,  without  the  Consent  of  Congress,  lay  any 
Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace, 
enter  into  any  Agreement  or  Compact  with  another  State,  or  with 
a  foreign  Power,  or  engage  in  War,  unless  actually  invaded,  or  in 
such  imminent  Danger  as  will  not  admit  of  delay.* 

ARTICLE.  II. 

Section,  i.  [§  i.]  The  executive  Power  shall  be  vested  in  a 
President  of  the  United  States  of  America.  He  shall  hold  his 
Office  during  the  Term  of  four  Years,  and,  together  with  the  Vice 
President,  chosen  for  the  same  Term,  be  elected,  as  follows 

[§  2.]  Each  State  shall  appoint,  in  such  Manner  as  the  Legis- 
lature thereof  may  direct,  a  Number  of  Electors,  equal  to  the 
whole  Number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress  :  but  no  Senator  or  Representative, 
or  Person  holding  an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

[The  Electors  shall  meet  in  their  respective  States,  and  vote  by 
Ballot  for  two  Persons,  of  whom  one  at  least  shall  not  be  an  In- 
habitant of  the  same  State  with  themselves.  And  they  shall  make 
a  List  of  all  the  Persons  voted  for,  and  of  the  Number  of  Votes 
for  each;  which  List  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  Seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  Presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  Certificates,  and  the  Votes  shall  then  be 
counted.  The  Person  having  the  greatest  Number  of  Votes  shall 
be  the  President,  if  such  Number  be  a  Majority  of  the  whole  Num- 
ber of  Electors  appointed  ;  and  if  there  be  more  than  one  who  have 
such  Majority,  and  have  an  equal  Number  of  Votes,  then  the 
House  of  Representatives  shall  immediately  chuse  by  Ballot  one 
of  them  for  President ;  and  if  no  Person  have  a  Majority,  then 
from  the  five  highest  on  the  List  the  said  House  shall  in  like  Man- 
ner chuse  the  President.  But  in  chusing  the  President,  the  Votes 
shall  be  taken  by  States,  the  Representation  from  each  State  hav- 

*  Extended  by  Thirteenth,  Fourteenth  and  Fifteenth  Amendments. 


412  Appendix  of  Documents. 

ing  one  Vote ;  A  quorum  for  this  Purpose  shall  consist  of  a  Mem- 
ber or  Members  from  two  thirds  of  the  States,  and  a  Majority  of 
all  the  States  shall  be  necessary  to  a  Choice.  In  every  Case,  after 
the  Choice  of  the  President,  the  Person  having  the  greatest  Num- 
ber of  Votes  of  the  Electors  shall  be  the  Vice  President.  But  if 
there  should  remain  two  or  more  who  have  equal  Votes,  the  Senate 
shall  chuse  from  them  by  Ballot  the  Vice  President.]  * 

[§  3.]  The  Congress  may  determine  the  Time  of  chusing  the 
Electors,  and  the  Day  on  which  they  shall  give  their  Votes;  which 
Day  shall  be  the  same  throughout  the  United  States. 

[§  4.]  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of 
the  United  States,  at  the  time  of  the  Adoption  of  this  Constitution, 
shall  be  eligible  to  the  Office  of  President;  neither  shall  any  Person 
be  eligible  to  that  Office  who  shall  not  have  attained  to  the  Age  of 
thirty  five  Years,  and  been  fourteen  Years  a  Resident  within  the 
United  States. 

[§5.]  In  Case  of  the  Removal  of  the  President  from  Office,  or 
of  his  Death,  Resignation,  or  Inability  to  discharge  the  Powers 
and  Duties  of  the  said  Office,  the  Same  shall  devolve  on  the  Vice 
President,  and  the  Congress  may  by  Law  provide  for  the  Case  of 
Removal,  Death,  Resignation,  or  Inability,  both  of  the  President 
and  Vice  President,  declaring  what  Officer  shall  then  act  as  Presi- 
dent, and  such  Officer  shall  act  accordingly,  until  the  Disability  be 
removed,  or  a  President  shall  be  elected. 

[§  6.]  The  President  shall,  at  stated  Times,  receive  for  his  Ser- 
vices, a  Compensation,  which  shall  neither  be  encreased  nor  dimin- 
ished during  the  Period  for  which  he  shall  have  been  elected,  and 
he  shall  not  receive  within  that  Period  any  other  Emolument  from 
the  United  States,  or  any  of  them. 

[§  7.]  Before  he  enter  on  the  Execution  of  his  Office,  he  shall 
take  the  following  Oath  or  Affirmation :  — 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  Office  of  President  of  the  United  States,  and  will  to  the  best 
of  my  Ability,  preserve,  protect  and  defend  the  Constitution  of 
the   United  States." 

Section.  2.  [§  i.]  The  President  shall  be  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States,  and  of  the  Militia  of 
the  several  States,  when  called  into  the  actual  Service  of  the  United 
States  ;  he  may  require  the  Opinion,  in  writing,  of  the  pnncipal 
Officer  in  each  of  the  executive  Departments,  upon  any  subject 
relating  to   the  Duties  of  their  respective  Offices,  and  he  shall 

*  Superseded  by  Twelfth  Amendment. 


Federal  Constitution.  413 

have  Power  to  grant  Reprieves  and  Pardons  for  Offences  against 
the  United  States,  except  in  Cases  of  Impeachment. 

[§  2.]  He  shall  have  Power,  by  and  with  the  Advice  and  Con- 
sent of  the  Senate,  to  make  Treaties,  provided  two  thirds  of  the 
Senators  present  concur;  and  he  shall  nominate,  and  by  and  with 
the  Advice  and  Consent  of  the  Senate,  shall  appoint  Ambassadors, 
other  public  Ministers  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  Law :  but  the  Congress  may  by  Law  vest  the  Appoint- 
ment of  such  inferior  Officers,  as  they  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 

[§  3.]  The  President  shall  have  Power  to  fill  up  all  Vacancies 
that  may  happen  during  the  Recess  of  the  Senate,  by  granting 
Commissions  which  shall  expire  at  the  End  of  their  next  Session. 

Section.  3.  He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  State  of  the  Union,  and  recommend  to  their 
Consideration  such  Measures  as  he  shall  judge  necessary  and 
expedient ;  he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think  proper ;  he  shall  receive  Am- 
bassadors and  other  public  Ministers;  he  shall  take  Care  that  the 
Laws  be  faithfully  executed,  and  shall  Commission  all  the  Officers 
of  the  United  States. 

Section.  4.  The  President,  Vice  President  and  all  civil  Officers 
of  the  United  States,  shall  be  removed  from  Office  on  Impeach- 
ment for,  and  Conviction  of.  Treason,  Bribery,  or  other  high 
Crimes  and  Misdemeanors. 


ARTICLE    in. 

Section,  i  .  The  judicial  Power  of  the  United  States,  shall  be 
vested  in  one  supreme  Court,  and  in, such  inferior  Courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish.  The  Judges, 
both  of  the  supreme  and  inferior  Courts,  shall  hold  their  Offices 
during  good  Behaviour,  and  shall,  at  stated  Times,  receive  for 
their  Services,  a  Compensation,  which  shall  not  be  diminished 
during  their  Continuance  in  Office. 

Section.  2.  [§  i.]  The  judicial  Power  shall  extend  to  all  Cases, 
in  Law  and  Equity,  arising  under  this  Constitution,  the  Laws  of 
the  United  States,  and  Treaties  made,  or  which  shall  be  made, 
under  their  Authority;  —  to  all  Cases  affecting  Ambassadors,  other 


414  Appendix  of  Documents. 

public  Ministers  and  Consuls  ;  —  to  all  Cases  of  admiralty  and  mari- 
time Jurisdiction  ; —  to  Controversies  to  which  the  United  States 
shall  be  a  Party;  —  to  Controversies  between  two  or  more  States  ; 
—  between  a  State  and  Citizens  of  another  State;*  —  between 
Citizens  of  different  States,  —  between  Citizens  of  the  same  State 
claiming  Lands  under  Grants  of  different  States,  and  between  a 
State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens  or 
Subjects. 

[§  2.]  In  all  Cases  affecting  Ambassadors,  other  public  Minis- 
ters and  Consuls,  and  those  in  which  a  State  shall  be  Party,  the 
supreme  Court  shall  have  original  Jurisdiction.  In  all  the  other 
Cases  before  mentioned,  the  supreme  Court  shall  have  appellate 
Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

[§  3.]  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment, 
shall  be  by  Jury;  and  such  Trial  shall  be  held  in  the  State  where 
the  said  Crimes  shall  have  been  committed ;  but  when  not  com- 
mitted within  any  State,  the  Trial  shall  be  at  such  Place  or  Places 
as  the  Congress  may  by  Law  have  directed. 

Section.  3.  [§  i.]  Treason  against  the  United  States  shall  con- 
sist only  in  levying  War  against  them,  or  in  adhering  to  their 
Enemies,  giving  them  Aid  and  Comfort.  No  Person  shall  be  con- 
victed of  Treason  unless  on  the  Testimony  of  two  Witnesses  to  the 
same  overt  Act,  or  on  Confession  in  open  Court. 

[§  2.]  The  Congress  shall  have  Power  to  declare  the  Punish- 
ment of  Treason,  but  no  Attainder  of  Treason  shall  work  Corrup- 
tion of  Blood,  or  Forfeiture  except  during  the  Life  of  the  Person 
attainted. 


ARTICLE.    IV. 

Section,  i.  Full  Faith  and  Credit  shall  be  given  in  each  State 
to  the  pubhc  Acts,  Records,  and  judicial  Proceedings  of  every  other 
State.  And  the  Congress  may  by  general  Laws  prescribe  the 
Manner  in  which  such  Acts,  Records  and  Proceedings  shall  be 
proved,  and  the  Effect  thereof. 

Section.  2.  [§  i.]  The  Citizens  of  each  State  shall  be  entitled 
to  all  Privileges  and  Immunities  of  Citizens  in  the  several  States,  f 

[§  2.]  A  Person  charged  in  any  State  with  Treason,  Felony,  or 
other  Crime,  who  shall  flee  from  Justice,  and  be  found  in  another 

*  Limited  by  Eleventh  Amendment, 
t  Extended  by  Fourteenth  Amendment. 


Federal  Constitution.  415 

State,  shall  on  Demand  of  the  executive  Authority  of  the  State 
from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  Jurisdiction  of  the  Crime. 

[§  3-]  [No  Person  held  to  Service  or  Labour  in  one  State,  under 
the  Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of 
any  Law  or  Regulation  therein,  be  discharged  from  such  Service 
or  Labour,  but  shall  be  delivered  up  on  Claim  of  the  Party  to  whom 
such  Service  or  Labour  may  be  due.]  * 

Section.  3.  [§  i.]  New  States  may  be  admitted  by  the  Con- 
gress into  this  Union  ;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State  ;  nor  any  State  be  formed 
by  the  Junction  of  two  or  more  States,  or  Parts  of  States,  without 
the  Consent  of  the  Legislatures  of  the  States  concerned  as  well  as 
of  the  Congress. 

[§  2.]  The  Congress  shall  have  Power  to  dispose  of  and  make 
all  needful  Rules  and  Regulations  respecting  the  Territory  or 
other  Property  belonging  to  the  United  States;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims 
of  the  United  States,  or  of  any  particular  State. 

Section.  4.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  Republican  Form  of  Government,  and  shall  pro- 
tect each  of  them  against  Invasion  ;  and  on  Application  of  the 
Legislature,  or  of  the  Executive  (when  the  Legislature  cannot  be 
convened)  against  domestic  Violence. 


ARTICLE.   V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  Amendments  to  this  Constitution,  or, 
on  the  Application  of  the  Legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  Convention  for  proposing  Amendments,  which, 
in  either  Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part  of 
this  Constitution,  when  ratified  by  the  Legislatures  of  three  fourths 
of  the  several  States,  or  by  Conventions  in  three  fourths  thereof, 
as  the  one  or  the  other  Mode  of  Ratification  may  be  proposed  by 
the  Congress ;  Provided  [that  no  Amendment  which  may  be  made 
prior  to  the  Year  One  thousand  eight  hundred  and  eight  shall  in 
any  Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth 
Section  of  the  first  Article;  and]  f  that  no  State,  without  its  Con- 
sent, shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

*  Limited  by  Thirteenth  Amendment, 
t  Temporary  provision. 


4i6  Appendix  of  Documents. 

ARTICLE.    VI. 

r§  I.]  All  Debts  contracted  and  Engagements  entered  into, 
before  the  Adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution,  as  under  the 
Confederation.  * 

[§  2  ]  This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof  ;  and  all  Treaties  made 
or  which  shall  be  made,  under  the  Authority  of  the  United  States 
shall  be  the  supreme  Law  of  the  Land ;  and  the  Judges  in  every 
State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

[§  3.]  The  Senators  and  Representatives  before  mentioned,  and 
the  Members  of  the  several  State  Legislatures,  and  all  executive 
and  judicial  Officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  Oath  or  Affirmation,  to  support  this 
Constitution;  but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the  United 
States. 

ARTICLE.   VII. 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be 
sufficient  for  the  Establishment  of  this  Constitution  between  the 
States  so  ratifying  the  Same. 

Done   in    Convention   by   the    Unanimous  Consent 

of  the   States   present  the   Seventeenth  Day   of  Sep- 

[Noteof  the  draughtsman  tember  in  the  Year  of  our  Lord  one  thousand  seven 

as    to    interlineations  in  the  hundred  and  Eighty  seven  and  of  the    Independance 

text  of  the  manuscript.]  of  the   United    States   of  America    the   Twelfth    In 

Attest  Witness  whereof  We  have  hereunto  subscribed  our 

William  Jackson  names,  t 

Secretary.  Go  WASHINGTON  — 

Presidt  and  deputy  front  Virginia. 

[Signatures.] 

AMENDMENTS. 

ARTICLES  in  addition  to  and  Amendment  of  the  Constitution 
of  the  United  States  of  America,  proposed  by  Congress,  and  rati- 
fied by  the  Legislatures  of  the  several  States,  pursuant  to  the  fifth 
Article  of  the  original  Constitution.  % 

*  Extended  by  Fourteenth  Amendment,  Section  4. 
t  These  signatures  have  no  other  legal  force  than  that  of  attestation. 
J  This  heading  appears  only  in  the  joint  resolution  submitting  the 
first  ten  amendments. 


Federal  Constitution.  417 

[ARTICLE    I.]*      • 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press ;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  Government  for  a 
redress  of  grievances. 

[ARTICLE    IL] 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a 
free  State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall  not 
be  infringed. 

[ARTICLE    III.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law.  ^ 

[ARTICLE    IV.] 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  Warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  Oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized. 

[ARTICLE   v.] 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
Militia,  when  in  actual  service  in  time  of  War  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice  put 
in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law;  nor  shall  private  property 
be  taken  for  public  use,  without  just  compensation. 

[ARTICLE    VI.] 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  dis- 

*  In  the  original  manuscripts  the  first  twelve  amendments  have  no 
numbers 

27 


41 8  Appendix  of  Documents. 

trict  wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation ;  to  be  confronted  with 
the  witnesses  against  him ;  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor,  and  to  have  the  Assistance  of  Counsel 
for  his  defence. 

[ARTICLE   VII.] 

In  suits  at  common  law,  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-ex.:mined  in  any 
Court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

[ARTICLE   VIIL] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

[ARTICLE    IX.] 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

[ARTICLE   X.] 

The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively  or  to  the  people.* 

[ARTICLE   XL] 

The  Judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  Citizens  of  another  State,  or 
by  Citizens  or  Subjects  of  any  Foreign  State.f 

[ARTICLE    XIL] 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least,  shall 
not  be  an  inhabitant  of  the  same  state  with  themselves  ;  they  shall 
name  in  their  ballots  the  person  voted  for  as  President,  and  in  dis- 

*  Amendments  First  to  Tenth  appear  to  have  been  in  force  from 
Nov.  3,  1791. 

t  Proclaimed  to  be  in  force  Jan.  8,  1798, 


Federal  Constitution.  419 

tinct  ballots  the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate ;  —  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted ;  —  The  person  hav- 
ing the  greatest  number  of  votes  for  President,  shall  be  the  Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of  Electors 
appointed;  and  if  no  person  have  such  majority,  then  from  the  per- 
sons having  the  highest  numbers  not  exceeding  three  on  the  list  of 
those  voted  for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  states,  the  representation 
from  each  state  having  one  vote;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the  states,  and 
a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  President  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  then  the  Vice-President  shall  act  as  Pres- 
ident, as  in  the  case  of  the  death  or  other  constitutional  disability 
of  the  President.  —  The  person  having  the  greatest  number  of  votes 
as  Vice-President,  shall  be  the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  Electors  appointed,  and  if  no  per- 
son have  a  majority,  then  from  the  two  highest  numbers  on  the  list, 
the  Senate  shall  choose  the  Vice-President;  a  quorum  for  the  pur- 
pose shall  consist  of  two-thirds  of  the  whole  number  of  Senators, 
and  a  majority  of  the  whole  number  shall  be  necessary  to  a  choice. 
But  no  person  constitutionally  inehgible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States.  * 


•«3' 


ARTICLE   XIII. 

Section  i.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction.  Section  2.  Congress  shall  have  power  to 
enforce  this  article  by  appropriate  legislation. t 

*  Proclaimed  to  be  in  force  Sept.  25,  1804. 

t  Proclaimed  to  be  in  force  Dec.  18,  1865.  Bears  the  unnecessary 
approval  of  the  President. 


420  Appendix  of  Documents, 


ARTICLE   XIV. 

Section  i.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States ;  nor  shall  any  State  deprive  any  per- 
son of  life,  liberty,  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice  of 
electors  for  President  and  Vice  President  of  the  United  States, 
Representatives  in  Congress,  the  Executive  and  Judicial  officers  of 
a  State,  or  the  members  of  the  Legislature  thereof,  is  denied  to  any 
of  the  male  inhabitants  of  such  State,  being  twenty-one  years  of 
age,  and  citizens  of  the  United  States,  or  in  any  way  abridged,  ex- 
cept for  participation  in  rebellion,  or  other  crime,  the  basis  of 
representation  therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole  number  of 
male  citizens  twenty-one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice  President,  or  hold  any 
office,  civil  or  military,  under  the  United  States,  or  under  any  State, 
who,  having  previously  taken  an  oath,  as  a  member  of  Congress, 
or  as  an  officer  of  the  United  States,  or  as  a  member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any  State,  to 
support  the  Constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid  or  com- 
fort to  the  enemies  thereof.  But  Congress  may  by  a  vote  of  two- 
thirds  of  each  House,  remove  such  disability. 

Section  4.  The  vahdity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pen- 
sions and  bounties  for  services  in  suppressing  insurrection  or  re- 
bellion, shall  not  be  questioned.  But  neither  the  United  States 
nor  any  State  shall  assume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave  ;  but  all  such  debts, 
obligations  and  claims  shall  be  held  illegal  and  void. 


Federal  Constitution.  421 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article.* 

•     ARTICLE   XV.  t 

Section  i.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of  servitude.  — 

Section  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. — % 

*  Proclaimed  to  be  in  force  July  28,  1868. 

t  Amendments  Thirteenth,  Fourteenth  and  Fifteenth  are  numbered 
in  the  original  manuscripts. 

}  Proclaimed  to  be  in  force  Mar.  30,  1870. 


INDEX. 


INDEX. 


[The  names  of  cases  are  in  italics.    The  citation  for  any  case  may  be  found  at  the  beginning  of  the 
chapter  in  which  the  case  is  referred  to.] 


A  ecus  AT  ION  of  crime,  right  to  be 
informed  of,  324. 

Acquittal  in  criminal  prosecutions  con- 
clusive, 320. 

Acts  and  records,  faith  and  credit  given 
to,  273;  how  proven,  273. 

Adams  Express  Co.  v.  Ohio  State  Au- 
ditor^ 161. 

Adjournment  of  Congress  by  president, 
209. 

Administration,  duties  of  executive  as 
to,  200. 

Admiralty,  jurisdiction  in,  96,  233. 

Adoption  of  constitutions,  26-35. 

Alexander  \.  Dunn,  195. 

Aliens,  executive  power  as  to,  214; 
rights  of,  regulated  by  treaties,  216; 
jurisdiction  of  federal  courts  as  to, 
238,  239;  property  rights  of,  271; 
children  of,  may  be  citizens,  278; 
protected  by  provisions  as  to  due 
process  of  law,  349;  naturahzation 
of,  see  Naturalization. 

Allegiance,  breach  of,  constituting  trea- 
son, 94;  by  birth  or  naturalization, 
174. 

Allen  V.  Pullman  Pal.  Car  Co.,  161. 

Ambassadors,  appointment  of,  203;  ju- 
risdiction of  cases  affecting,  225,  232, 
249 ;  citizenship  of  children  of,  278. 

Amendment  of  constitutions,  28,  34. 

Amendments  to  federal  constitution, 
46-53,  282.  See  also  separate  refer- 
ences to  Eleventh,  Tliirteenth,  Four- 
teenth, and  Fifteenth  Amendments. 

American  Ins.  Co.  v.  Canter,  266. 

Amnesty,  205. 

Anderson  v.  Dunn,  195. 

Anti-trust  laws  as  to  commerce,  160, 
162  ;  jurisdiction  of  cases  under, 
246. 

425 


Appeal,  from  state  to  federal  courts, 
242,  257  ;  to  the  circuit  court  of 
appeals,  247 ;  to  the  federal  supreme 
court,  248-250 ;  in  jury  cases,  339. 

Appointment  of  officers,  195,  202-204. 

Apportionment  of  direct  tax,  139-142. 

Appropriations,  for  armies,  121;  for 
public  purpose,  121,  123. 

Approval  of  statutes,  executive,  66, 
206-208. 

Armies,  appropriations  for,  121. 

Armour  Packing  Co.  v.  U.  S.,  162. 

Arms,  bearing  or  carrying  of,  311. 

Army  and  navy,  regulation  of,  by  Con- 
gress, 189;  president  as  commander- 
in-chief  of,  210. 

Arndt  V.  Griggs,  351. 

Arrests  with  or  without  warrant,  314. 

Articles  of  Confederation,  union  under, 

30. 
Assembly,  rights  of,  309. 
Assessment  of  taxes,  134. 
Assessments,  special,  132. 
Australian  ballot,  286. 


TDAIL,  right  to,  in  criminal  prosecu- 
tions, 327. 

Balance  of  power  under  British  consti- 
tution, 7;  between  powers  of  depart- 
ments of  government,  63. 

Baldwin  v.  Hale,  177. 

Bank  of  Columbia  v.  Oakley^  345. 

Bank  of  Commerce  v.  New  York  City 

.   129. 

Bankruptcy  laws,  177;  impairing  obli- 
gation of  contracts,  357. 

Banks,  state,  144;  national,  .f*?^  National 
Banks. 

Barbier  v.  Connolly,  354. 

Barron  v.  Baltimore^  50. 


426 


Index. 


Bautnan  v.  Ross^  116. 

Bearing  arms,  right  of,  311. 

Beer  Co,  v.  Massachusetts,  361. 

Benefits  not  considered  in  condemna- 
tion proceedings,  114. 

Bible,  reading  of,  in  public  schools,  298. 

Bill  of  rights,  in  Great  Britian,  13;  in 
constitutions,  46-53. 

Bills  of  credit,  144-147. 

Birthplace,  as  determining  citizenship, 
277. 

Blake  V.  Mc Clung,  273. 

Blasphemy,  punishment  of,  299,  302. 

Bors  V.  Preston,  233. 

Boundaries  of  states,  change  of,  263. 

Bowtnan  v.  Railroad  Co.,  157. 

Boyd  V.  Thayer,  2S0. 

Branches  of  legislature,  65.  See  Legis- 
latures. 

Brimmer  \.  Rebman,  157. 

Briscoe  v.  Bank  of  Kentucky,  144. 

British  constitution,  characteristics  of, 
6-8. 

Bronson  v.  Kinzie,  365. 

Branson  v.  Rhodes,  146. 

Brown  v.  Maryland,  158. 

Brown  V.  Walker,  321. 

Burgess  v.  Seligman,  253. 

QAMPBELL  v.  HOLT,  363. 
Capital  punishment,  329. 

Capital  Traction  Co.  v.  Hof,  338. 

Censorship  of  the  press,  302,  303. 

Census,  as  basis  for  direct  taxes,  139. 

Central  Bridge  Corp.  v.  City  of  Lowell, 
112,  362. 

Charters  of  corporations,  as  contracts, 
167,  361. 

Charters  of  the  colonies,  26. 

Checks  and  balances,  in  government,  63. 

Cherokee  Nation  v.  Kansas  R.  Co.,  107. 

Chinese,  naturalization  of,  176;  exclu- 
sion of,  214;  citizenship  of,  277;  en- 
titled to  due  process  of  law,  349. 

Chinese  Exclusion  Case,  195,  215,  218. 

Christianity,  recognized  as  predominat- 
ing religion,  296. 

Circuit  courts,  federal,  jurisdiction  of, 
245. 

Circuit  courts  of  appeal,  jurisdiction  of, 
247. 


Citizens  of  different  states,  jurisdiction 

of  cases  between,  246. 
Citizenship,  by  naturalization,  173;  as 

basis    for    federal  jurisdiction,    226, 

237;  in  territories,  267;  privileges  and 

immunities  of,  271 ;  in  the  states,  275; 

in  the  United  States  by  birth,  277; 

by  naturalization,  279;  in  the  United 

States,  privileges  pertaining  to,  280; 

political   privileges  not  incident  to, 

284-288. 
Civil  liberty,  guaranty  of,  293. 
Civil  rights,  protection  of,  289-294,  345. 
Civil  Rights  Cases,  Sy. 
Class  legislation,  validity  of,  354. 
Clinton  v.  Englebrecht,  266. 
Clyati  v.  United  States,  183. 
Cohens  v,  Virginia,  242. 
Coining  money,  power  of  Congress,  146. 
Collector  \.  Day,  130. 
Colonial  charters,  26. 
Colonies,  people  of,  British  subjects,  5 ; 

government  in,  26 ;  legislative  assem- 
blies in,  65. 
Comity  between  states,  268 ;  as  to  acts 

and  judgments,  273. 
Commander-in-chief,  president  or  state 

executive  as,  210. 
Commerce,    under    confederation,   31  ; 

interference  with,  by  taxing  power, 

134;  regulation  of,  150-163. 
Commissioners  of  United  States  courts, 

251. 
Common  carriers,  regulation  of,  150. 
Common  law,  of  United  States,  38  ;  of 

the  states  and  United  States,   252; 

due  process  as  referring  to,  345. 
Compensation   for   property  taken  by 

eminent  domain,  11 2-1 17. 
Condemnation  of  private  property  for 

public  use,  1 03-1 18. 
Confederacy,   war   of,   against   United 

States,  94. 
Confederation,  articles  of,  30. 
Conflict  of  laws  as  between  states,  268. 
Congress,  continental,  authority  of,  29, 

30- 
Congress,  federal,  organization  of,  and 
method  of  transacting  business,  22, 
66-69,  70,  209  ;  action  of,  for  amend- 
ment   of    constitution,    34;    general 


Index. 


427 


powers,  40,  41  ;  power  in  the  terri- 
tories, 52 ;  regulation  of  elections, 
68,  76,  257,  286,  287  ;  election  of  sen- 
ators and  representatives  in,  67-69 ; 
not  vested  with  general  police  power, 
88  ;  authority  to  punish  crimes,  gi ; 
appropriations,  122;  bills  for  raising 
revenue,  122;  power  to  lay  and  col- 
lect taxes,  T36  ;  to  regulate  money 
and  legal  tender,  146;  to  regulate 
commerce,  150-163;  to  charter  fed- 
eral corporations,  170;  as  to  natural- 
ization, 173;  as  to  bankruptcy,  177; 
as  to  copyrights  and  patents,  1 78-1 81 ; 
as  to  weights  and  measures,  181;  as 
to  post-offices  and  post-roads,  181; 
as  to  District  of  Columbia  and  places 
ceded  to  the  federal  government, 
1S4-186;  war  powers,  189-193;  im- 
plied powers,  194-196;  limitations 
on  powers,  196;  may  provide  for 
appointment  of  officers,  203,  204; 
authority  as  to  diplomacy  and  treaties, 
213-218;  powers  as  to  aliens,  214; 
may  provide  for  federal  courts,  226; 
powers  as  to  admitting  states,  262; 
as  to  change  of  state  boundaries, 
263  ;  as  to  government  of  territories, 
265  ;  may  prescribe  manner  of  proof 
of  acts,  records  and  proceedings  of  a 
state,  273;  power  to  confer  citizen- 
ship, 279;  may  impair  obligation  of 
contracts,  357. 

Constitution  of  Great  Britain,  charac- 
teristics of,  6-8,  ir,  12. 

Constitution,  federal,  formulation  and 
adoption  of,  31-33;  nature,  23\  ini- 
plied  powers,  41  ;  final  interpretation, 
43;  limitations  on  state  power,  44; 
amendments,  46-53;  bills  of  rights, 
48 ;  construction  of  limitations,  50 ; 
in  the  territories,  52;  provision  as  to 
general  welfare,  89;  as  to  crimes,  91 ; 
jurisdiction  of  cases  arising  under, 
230-232;  interpretation  in  courts, 
231;  appeals  in  cases  involving  con- 
struction, 242 ;  ratification  by  states, 
262 ;  extension  to  territories,  266. 

Constitutional  conventions,  authority 
of,  28. 

Constitutional  government,  3-25. 


Constitutional    guaranties,   waiver  of, 

325.  33'- 

Constitutional  law,  affected  by  history, 
4-6;  nature  of,  in  United  States,  13. 

Constitutionality  of  statutes,  judiciary 
may  pas.j  upon,  18-25,  255;  execu- 
tive, judge  as  to,  201. 

Constitutions,    adoption    and    amend- 


ment of,    26- 


interpretation   by 


executive,  201. 

Constitutions,  state,  early  form,  27; 
authority  under,  27;  amendment  of, 
34;  bills  of  rights  in,  48;  limitations 
as  to  methods  of  legislation,  72  ;  limi- 
tations on  legislative  power,  83. 

Constitutions,  wiitten,  11-16;  govern- 
ment under,  16-18;  unconstitution- 
ality of  statutes  under,  18-25,  255. 

Construction,  of  constitutions  as  to 
powers  granted,  39 ;  of  limitations  in 
federal  constitution,  50;  of  federal 
constitution  in  courts,  231;  appeals 
in  cases  involving,  242. 

Consular  courts,  jurisdiction  of,  250,281. 

Consuls,  jurisdiction  of  cases  affecting, 
225,  232,  249. 

Contempt,  punishment  for,  without  jury 
trial,  346. 

Contests  as  to  elections,  69. 

Continental  Congress,  authority  of,  29. 

Contracts,  corporate  charters  deemed, 
167-171;  obligation  impaired  by 
bankruptcy  laws,  177;  right  to  make 
and  enforce,  294,  351;  obligation 
protected,  356-362. 

Convention,  to  prepare  federal  consti- 
tution, 31 ;  for  amendment  of  federal 
constitution,  34. 

Conventions,  constitutional,  authority 
of,  28. 

Conventions  of  states  to  adopt  federal 
constitution,  17,  32. 

Copyrights,  178-181. 

Corporations,  private,  control  of,  under 
police  power,  86;  exercise  of  power 
of  eminent  domain  by,  107  ;  creation 
and  regulation  of,  165-171;  federal, 
jurisdiction  of  cases  by  or  against^ 
231 ;  citizenship  of,  as  to  federal  juris- 
diction, 238 ;  not  entitled  to  privileges 
and  immunities  of  citizenship,  272; 


428 


Index. 


protected  by  provisions  as  to  due 
process  of  law,  349;  charters  of,  as 
contracts,  361. 

Corporations,  public  or  municipal,  may 
exercise  power  of  eminent  domain, 
106;  condemnation  of  property  by, 
112;  taxation  by,  124;  regulation  of, 
168-171;  subject  to  legislative  con- 
trol, 362. 

Counsel,  right  to  assistance  of,  in  crim- 
inal prosecutions,  327. 

Counterfeiting,  94. 

Court,  powers  of,  in  jury  trial,  336. 

Court  of  claims,  235,  251. 

Courts,  power  of,  to  declare  statutes 
unconstitutional,  18-25  ;  decisions  of, 
as  precedents,  20,  23,  221,  360;  gen- 
eral powers  of,  219  ;  having  juris- 
diction, judgment  conclusive,  273 ; 
cannot  act  without  jurisdiction,  350. 

Courts,  federal,  general  powers  of, 
presumption,  227;  jurisdiction  of, 
224-228;  cases  cognizable  by,  230- 
239 ;  exercise  of  power  by,  240-243 ; 
apportionment  of  powers  of,  244- 
251;  law  administered  in,  252-255; 
habeas  corpus  in,  330. 

Courts,  state,  general  powers  of,  221  ; 
law  administered  in,  223;  jurisdiction 
of,  as  to  federal  questions,  226  :  con- 
current jurisdiction  of,  with  federal 
courts,  227,  228 ;  removal  of  cases 
from,  241 ;  appeal  from,  to  federal 
courts,  242;  jurisdiction  conflicting 
with  federal  courts,  254;  powers  as 
to  habeas  corpus  with  reference  to 
proceedings  in  federal  court,  330. 

Courts-martial,  191,  319. 

Craig  V.  Missouri,  144. 

Crime,  pardons  for,  204 ;  religious  be- 
lief no  defence  for,  300. 

Crimes,  punishment  of,  left  to  states,  39  ; 
power  of  federal  government  to  pun- 
ish, 40;  against  federal  government, 
91-94;  punishment  of,  in  general,  91- 
99;  on  high  seas,  95;  against  United 
States,  jurisdiction,  225,  234,  245, 
246;  against  United  States,  arrests 
for,  251 ;  against  United  States,  stat- 
utory only,  254;  jurisdiction  to  pun- 
ish within  state,  269;  guaranties  as 


to  prosecutions  for,  293,  3x5-332; 
injuries  to  reputation,  302-308;  in- 
dictment, 317-319;  venue,  323. 

Criminal  procedure,  guaranties  as  to, 
293.315-332. 

Criminals,  extradition  of,  269. 

Cnmmings  v.  Missouri,  205. 

Ctmnius  v.  Reading  District,  350, 

Currency,  under  confederation,  31 ;  tax- 
ation of.  129,  144;  regulation  of,  by 
federal  government,  133,  144-147, 
170;  powers  of  states  as  to,  144. 

Curtis,  Ex  parte,  195. 

JJALBY  V.  WOLF,  63. 

Dartmouth    College    Case,    168, 
348,  361. 

Debs,  In  re,  163,  202,  339,  347. 

Decisions  of  courts  as  precedents,  20, 
23,  221,  360. 

Declaration  of  Independence,  nature  of, 
8-1 1,  49;  prohibition  of,  as  to  stand- 
ing armies,  193;  guaranties  of,  as  to 
natural  rights,  2S9-294;  provisions 
of,  as  to  jury  trial  in  criminal  prose- 
cutions, 323. 

Deeringw.  Peterson,  125. 

Defamation,  see  Libel. 

Delegated  powers  of  federal  govern- 
ment, 40,  41. 

De  Lima  v.  Bidzvell,  138. 

Departments,  executive,  organization 
of,  74-78. 

Departments  of  government,  distribu- 
tion of  powers  among,  7,  37-39; 
exercise  delegated  power,  9 ;  rela- 
tions of,  18-25;  implied  powers  of, 
41;  independence  of,  55-64;  mutual 
checks  upon,  63. 

Diplomacy,  authority  of  the  president 
as  to,  213, 

Diplomatic  relations  not  controlled  by 
judiciary,  21. 

Direct  taxes,  139-142. 

District  courts,  federal,  245. 

District  of  Columbia,  government  of, 
184;  not  a  state,  237;  system  of 
courts  for,  250. 

Division  of  powers  among  departments 
of  government,  7,  37-39,  53-64. 

Dobbins  v.  Commissioner,  130. 


Index. 


429 


Domicil,  as  affecting  state  citizenship, 
276. 

Dorr  V.  United  States,  53,  267. 

Double  taxation,  128. 

Douglas  V.  Kentucky f  361. 

Due  process  of  law,  as  to  power  of 
eminent  domain,  113,  118;  as  to 
taxation,  131-133 ;  as  to  corpora- 
tions, 168,  273 ;  as  to  prosecutions 
for  crime,  316;  jury  trial  not  es- 
sential to,  340;  constitutional  pro- 
visions, 344;  what  constitutes,  345; 
effect  of  legislation,  347 ;  what  per- 
sons entitled  to,  349 ;  property  rights 
protected,  350 ;  freedom  of  contract 
and  of  labor,  351. 

Duties,  imposts,  and  excises,  power  of 
Congress  to  levy,  133,  136-139, 

Dwelling,  protection  of  sanctity  of,  312, 

314- 
Dying  declarations,  admissibility  of,  325. 
Dynes  v.  Hoover,  igz. 

gASEMENT    for   public   use,    114, 
115. 

Eileitbeckcr  v.  Plymouth  County,  339, 
346. 

Election,  of  members  of  state  legisla- 
tures, 67 ;  of  senators  and  representa- 
tives in  Congress,  67-69;  of  presi- 
dent, 75-78. 

Elections,  regulation  of,  by  Congress, 
68,  76,  257,  2S6,  287. 

Elective  franchise,  how  conferred  and 
protected,  284-287. 

Electoral  college,  75-78. 

Electoral  commission,  78. 

Eleventh  amendment,  purpose  of,  236. 

Elk  V.  Wilkins,  277. 

Eminent  domain,  103-118;  distin- 
guished from  taxation,  123;  confis- 
cation of  franchises  under,  362. 

England,  see  Great  Britain. 

Enumerated  powers,  40,  41. 

Enumeration  of  rights,  constitutional, 
41. 

Equal  protection  of  the  laws,  352;  cor- 
porations entitled  to,  273. 

Equality,  how  far  guaranteed,  2S9-294 ; 
of  taxation,  128,  ,131  ;  of  privileges, 
272;  as  to  religion,  295. 


Equity,  as  administered  in  the  federal 
courts,  252-255. 

Equity  cases,  procedure  in,  338,  339. 

Escheat,  102. 

Evidence,  of  acts,  records  or  proceed- 
ings of  another  state,  273;  of  laws  of 
another  state,  274. 

Executive,  independence  of,  56-58; 
administrative  functions,  200-202; 
appointment  of  officers,  202-204; 
pardons,  204,  205 ;  veto  power,  206, 
20S;  recommendations  as  to  legisla- 
tion, 208. 

Executive,  colonial,  26. 

Executive,  federal.     See  President. 

Executive,  state,  election  of,  75 ;  au- 
thority of,  as  to  extradition,  270. 

Executive  department,  federal,  powers 
of,  as  to  diplomacy,  21,  22.  See 
President. 

Executive  departments,  organization  of, 
74-78. 

Executive  powers,  under  British  consti- 
tution, 7;  federal  and  state,  197-199. 

Exemption  statutes,  as  amounting  to 
contracts,  360 ;  as  affecting  vested 
rights,  365. 

Exemptions,  from  taxation,  126;  of 
church  property,  298 ;  repeat  of,  362. 

Expatriation,  174. 

Exports,  taxation  of,  137. 

Ex  post  facto  laws,  not  valid,  205,  364. 

Expulsion  of  members  of  Congress,  22. 

Extra  sessions  of  Congress,  209. 

Extradition  of  criminals,  269. 

T7AITH  and  credit  to  acts,  records 
and  judgments  of  states,  273. 

Field  V.  Clark,  63. 

Fifteenth  amendment,  53,  285. 

Financial  powers,  of  states,  143-145 ; 
of  federal  government,  145-147. 

Fisk  v.  Jefferso7i  Police  Jury,  360. 

Fletcher  v.  Peck,  358, 

Fotig  Yui  Ting  v.  United  States,  195. 

Foreign  commerce,  regulation  of,  150- 
163.     See  Commerce. 

Foreigners,  see  Aliens. 

Fort  Leavnxvorth  R.  Co.  v.  Lmve,  185. 

Forts,  arsenals,  and  navy  yards,  juris- 
diction over,  185. 


430 


Index. 


Fourteenth  amendment,  scr  pe  of,  47 
48  ;  construction  of,  51;  as  affecting 
police  power  of  states,  8y ;  applica- 
tion of,  to  condemnation  proceedings, 
105;  as  affecting  taxation,  131;  as  to 
citizenship,  175,  275-283;  as  to  due 
process  of  law,  345,  349 ;  as  to  equal 
protection,  352;  protects  executed 
coi  tracts,  358. 

France,  effect  of  revolution  in,  8. 

Franchises  of  corporations,  how  con- 
ferred, 165-171;  regulation  of,  361, 
362;  federal  taxation  of,  130.  See 
Corporations. 

Freedom  of  contract,  293,  351. 

Freedom  of  religion,  295. 

Freedom  of  speech  and  tlie  press,  294 
301-308. 

French  v.  Asphalt  Co.,  132. 

Fugitive  slave  law,  183,  270. 

Fugitives  from  justice,  extradition  of, 
269. 

QAINES  V.  FUENTES,  241. 
Garland,  In  re,  205. 

Geebrick  v.  State,  62. 

General  welfare  clause  of  federal  con- 
stitution, 89. 

Gibbons  v.  Ogden,  156,  195. 

Gonzales  v.    Williams,  267,  280. 

Government,  constitutional.  3-25;  de- 
partments of,  exercise  delegated 
power,  9;  under  written  constitution, 
16-18;  division  of  powers  among 
departments  of,  55-64;  ultimate  ob- 
ject of,  85 ;  taxation  of  officers  or 
agencies  of,   129,  130;  libels  on,  303. 

Government,  federal,  under  confedera- 
tion, 30;  inauguration  of,  32;  rela- 
tions to  state  governments,  36-53, 
256;  enumerated  powers,  40;  implied 
powers,  41,  194-196;  supremacy,  43 ; 
may  exercise  power  of  eminent 
domain,  106;  taxation  of  bonds  or 
other  agencies  or  officers  of,  129; 
pov^rer  of,  to  regulate  currency,  133; 
taxation  by,  135;  direct  taxation  by, 
139;  power  of,  as  to  currency,  144- 
147;  as  to  commerce,  150-163;  as  to 
corporations,  170;  war  powers  of, 
189-193. 


Governments,  state,  relations  to  federal 
government,  36-53,  256;  general 
powers  of,  40 ;  condemnation  of  prop- 
erty by,  103-118;  power  of  taxation 
inherent  in,  120;  recognition  of,  by 
federal  authority,  212. 

Governments,  territorial,  265-267. 

Governor.     See  Executive. 

Grand  jury,  indictment  by,  for  crime, 
317-319.  _ 

Great  Britain,  institutions,  5-8;  con- 
stitution, 6-8,  11;  sovereignty,  16. 

J^ABEAS  CORPUS,  in  Great  Brit- 
ain, 12;  suspension  of,  192,  211, 

331;  in  criminal  prosecutions,  329. 
Halladjian,  In  re,  176. 
Hallifiger  v.  Davis,  332. 
Hans  V,  Louisiana,  237,  356. 
Harris  v.  People  of  Illinois,  332. 
Hartford  v.  Hartford  Bridge  Co.,  362. 
Henderson  v.  Mayor  of  New    York, 

156. 
Hepburn  v.  Ellzey,  184. 
Herdick  v.  Roessler,  180. 
High  seas,  punishment  of  crimes  on, 

95;  admiralty  jurisdiction  as  to,  233; 

citizenship  of  children  born  on,  278. 
Highways,  condemnation  of  land  for, 

109. 
History,  constitutional,  as  affecting  law, 

4-6. 
Hold  en  v.  Hardy,  352. 
House  of   Representatives,  election  of 

members  of,  67-69;  power  of,  as  to 

treaty   relations,  215;   members  of, 

chosen  by  people,  286.   See  Congress, 

and  Elections. 
Hurt  ado  v.  California,  51,  318,  347. 

IMMIGRATION,  regulation  of,  214. 
Impairment  of  obligation  of  con- 
tracts, 356-362. 

Impeachment,  57,  58,  60;  pardoning 
power  does  not  extend  to,  204. 

Implied  powers  of  federal  government, 
41,  194-196. 

Income  tax,  141. 

Income  Tax  Case,  141. 

Independence  of  the  states,  29. 

Indians,    commerce    with,    152,    162; 


Index. 


431 


naturalization  of,    176;    citizenship 

of,  277,  280. 

Indictment  for  crime,  not  essential  to 
due  process  of  law,  317-319. 

Individuals,  guaranties  to,  289-294. 

Initiative  and  referendum,  9-1 1. 

Inquisition  as  to  crimes  not  permitted, 
321. 

Insolvency,  state  laws  as  to,  178. 

Institutions,  development  of,  5 ;  of 
Great  Britian,  6-8. 

Insular  Cases,  138,  267. 

Internal  improvements,  power  of  Con- 
gress as  to,  88. 

Interpretation,  of  written  constitutions, 
14;  of  federal  constitution,  liberal, 
41;  in  courts,  231;  appeals  in  cases 
involving,  242. 

Interstate  commerce,  regulation  of,  150- 
163.     See  Commerce. 

Interstate  relations,  comity,  268;  ex- 
tradition of  criminals,  269 ;  state  citi- 
zenship, 271 ;  faith  and  credit,  273. 

Intoxicating  liquors,  regulation  of  sale 
of,  87,  104,  361 ;  licenses  to  sell,  133, 
137;  regulation  of  commerce  in, 
157-160. 

Invasion,  protection  of  states  against, 
.      211,259. 

Inventions,  protection  of,  by  patent 
laws,  178-181. 

JACKSON,  Ex  parte,  182,  308. 
J      Jeopardy,    what     constitutes,    in 

criminal  prosecutions,  319,  320. 
Jones  V.  United  States,  213. 
Judge,  powers  of,  in  jury  trial,  336. 
Judges,  independence  of,  59  ;  selection, 

79;  jurisdiction,  220-222;  of  federal 

courts,  jurisdiction,  244-250;  of  state 

courts  as  United  States  magistrates, 

251. 
Judgments,  in  one  state  to  have  full 

faith  and  credit  in  another,  273;  how 

proven,  273;   are   not  contracts  nor 

property,  364. 
Judicial   deci.-ions   are    not    contracts, 

359.     See  Decisions. 
Judicial  departments,  organization  of, 

79,  80. 
Judicial  independence,  58,  59. 


Judicial  proceedings,  not  always  essen- 
tial to  due  process,  346;  invalid 
without  jurisdiction,  350. 

Judicial  power,  under  British  constitu- 
tion, 7;  legislature  cannot  exercise, 
58. 

Judiciary,  power  of,  as  to  unconstitu- 
tional acts,  18-25,  255;  control  of 
executive  by,  56,  57;  general  powers 
of,  219;  of  the  state,  221 ;  law  admin- 
istered by,  223. 

Judiciary,  federal,  power  of,  as  to 
interpretation  of  constitution,  43; 
jurisdiction  of,  224-228;  cases  cog- 
nizable by,  230-239;  exercise  of 
power  by,  240-243;  apportionment 
of  powers  of,  244-251;  law  admin- 
istered by,  252-255. 

Jurisdiction,  conflicts  between  federal 
and  state,  44,  64,  254;  for  purpoees 
of  taxation,  128;  in  bankruptcy 
proceedings,  177;  over  District  of 
Columbia  and  places  ceded  to  the  fed- 
eral government,  184-186;  of  courts, 
220-222  ;  of  federal  judiciary,  224- 
228  ;  concurrent,  of  state  and  federal 
courts,  226-228  ;  of  federal  courts  in 
general,  230-239 ;  over  non-residents, 
236  ;  of  suits  against  state,  236,  237  ; 
of  federal  courts  by  original  suit,  240; 
by  removal,  241 ;  by  appeal,  242  ;  as  to 
crimes  committed  within  state  limits, 
269 ;  over  aliens,  281 ;  essential  in  ju- 
dicial proceedings,  350;  in  rem,  351. 

Jury  service,  privilege  of,  288. 

Jury  trial  in  civil  cases,  constitutional 
provisions,  333;  selection  of  jury, 
334;  evidence  and  instructions,  336; 
verdict,  336 ;  in  inferior  courts,  338 ; 
in  equity  cases,  338 ;  review  by  court, 
339;  waiver,  340;  modification,  340; 
expediency  of,  340;  not  essential  to 
due  process  of  law,  346,  347. 

Jury  trial  in  criminal  prosecutions, 
322-324 ;  waiver  of,  332. 

IT-ANSAS  V.  COLORADO,  162. 

^     Kelly  V.  Pittsburg,  132. 
Kemmler,  In  re,  329. 
Kentucky  v.  Dennison,  270. 
Kidd  V.  Pearson,  160. 


43^ 


Index. 


Kilbourn  v.  Thompson^  195. 
Kimmish  v.  Ball,  160. 
Koehler  v.  //i//,  28. 
Kohl\.  United  States,  106,  185. 
Kring  V.  Missouri,  320. 

T   AKES,  admiralty  jurisdiction  over, 

234. 
Land  grants  of  different  states,  jurisdic- 
tion as  to  controversies  relating  to, 
238. 

Lane  County  v.  Oregon,  146. 

Lascelles  v.  Georgia,  270. 

Law,  enforcement  of,  200;  administered 
in  state  courts,  223;  administered  in 
federal  courts,  252-255. 

Law,  constitutional,  affected  by  history, 
4-6  ;  nature  of,  in  United  States,  13. 

Law  of  nations,  offences  against,  95. 

Law  of  the  land,  treaties  are  a  part, 
216 ;  what  constitutes,  223.  See  Due 
process  of  law. 

Laws,  of  United  States,  jurisdiction  of 
cases  arising  under,  230;  of  state, 
how  proven,  274.     See  Statutes. 

Legal  tender  acts,  146,  147;  as  affect- 
ing obligation  of  contracts,  357. 

Legal  Tender  Case,  195,  358. 

Legal  Tender  Cases,  146. 

Legislation,  by  initiative  and  referen- 
dum, 9-1 1 ;  effect  of  unconstitution- 
ality, 18-25;  methods  of,  72;  state, 
general  scope  of,  81-84;  limitations 
on,  83,  and  see  Limitations ;  in  exer- 
cise of  police  power,  85-87;  as  to 
finances,  143;  executive  veto  upon, 
206-208 ;  recommendations  as  to, 
208;  as  regulating  due  process  of 
law,  347  ;  uniformity  of,  353;  in  im- 
pairment of  obligation  of  contracts, 
356;  in  general,  repealable,  360,361. 

Legislative  bodies  in  the  colonies,  26. 

Legislative  department,  control  of,  by 
judiciary,  18-25. 

Legislative  functions  of  executive,  206- 
209. 

Legislatures,  cannot  exercise  judicial 
power,  58  ;  power  of,  cannot  be  dele- 
gated, 62  ;  branches  of,  65  ;  organiza- 
tion and  methods  of  business  in,  70; 
power  of,  as  to  taxation,  120;  power 


of,  as  to  corporations,  165-171;  may 
provide  as  to  elections,  257;  cannot 
deprive  of  property  without  due 
process  of  law,  350;  regulation  of 
corporate  franchises  by,  362  ;  power 
of,  to  pass  retroactive  laws,  364. 

Leisy  v.  Hardin,  158. 

Levy  of  taxes,  135. 

Libel,  what  constitutes,  302;  on  govern- 
ment, 303;  as  to  individuals,  304; 
privileged  publications,  305-308. 

Liberty,  individual,  guaranties  of,  289- 
294.     See  Freedom. 

License  taxes,  133;  by  federal  govern- 
ment, 137;  on  commerce,  155. 

Life,  guaranty  of  right  to,  293. 

Limitations,  constitutional,  binding 
effect,  7  ;  on  federal  and  state  power, 
44;  in  federal  constitution,  construc- 
tion of,  50;  on  methods  of  legislation, 
72;  on  subjects  of  legislation,  83;  on 
police  power,  88  ;  on  power  of  eminent 
domain,  105 ;  on  state  power  to  tax, 
133;  on  powers  of  Congress,  196; 
on  treaty  power,  216,  218;  for  pro- 
tection of  individual  rights,  292. 

Loan  Association  v.  Topeka,  124. 

Local  self-government,  6,  169. 

Lockner  v.  New  York,  352. 

Lotteries,  regulation  of,  87,  89;  prohi-* 
bition  of,  161,  361. 

Lottery  Case,  89,  161. 

Louisiana  v.  Mayor  of  New  Orleans^ 

359,  364- 
Lowell  \.  City  of  Boston,  125. 

■n^cCRACKEN   v.    HAYWARD, 

365- 

McCready  v.  Virginia,  272. 

McCiillock  v.  Maryland,  42,  43,  130, 
170,  195. 

McGahey  v.  Virginia,  356. 

Mackin  V.  United  States,  319. 

McLean  v.  Arkansas,  352. 

Magna  Charta,  provisions  as  to  due 
process  of  law,  12,  344. 

Mails,  regulation  of  use  of,  182 ;  ex- 
clusion of  obscene  matter,  lottery 
advertisements,  etc.,  from,  308. 

Marbury  v.  Madison,  24,  57,  201. 

Martial  law,  declaration  of,  192,  210; 


Index. 


433 


involves  suspension  of  habeas  corpus, 

331- 

Martin  v.  Hunter'' s  Lessee^  242. 

Martin  v.  Mott^  211. 

Mattingly  v.  District  of  Columbia,  365. 

Mattox  V,  United  States,  326. 

Maxxvellv.  Dow,  51,  340. 

Meat  inspection  acts,  157. 

Merryman,  Ex  parte,  331. 

Metropolitaii  Railroad  Co.  v.  District 
of  Columbia,  184. 

Military  courts,  191 ;  proceedings  in, 
constitute  due  process,  347. 

Military  law,  191. 

Military  power,  subordinate  to  civil 
authority,  192,  331;  use  of,  for  en- 
forcement of  law,  202;  of  state  or 
federal  executive,  210;  for  protection 
of  states,  211. 

Militia,  state,  188,  189;  command  of, 
210;  use  of,  in  repelling  invasion  or 
suppressing  violence,  211,  259;  con- 
trol of  states  over,  257;  provided  for 
and  recognized,  311,  312. 

Milligan,  Ex  parte,  351. 

Minor  V.  Happersett,  284. 

Missouri  Pacific  R.  Co. v.  Nebraska,T,^o.^ 

Mitchell  V.  Clark,  2,6':,. 

Mobile  Trans.  Co.  v.  Mobile,  360. 

Money,  regulation  of,  by  Congress, 
146. 

Morley  v.  Lake  Shore,  etc.  R.  Co.,  359. 

Municipal  corporations,  see  Corpora- 
tions, public  or  municipal. 

Alunn  v.  Illinois,  168. 

Murray  v.  Charleston,  128. 

JsJATIONAL   BANKS,  taxation  of 
notes  of,   130;  taxation  of,   138; 

currency  of,  145;  jurisdiction  of  cases 

by  or  against,  231. 
Natural  rights,  protection  of,  8-10,  289- 

294. 
Naturalization,    173-177;    by   state  or 

federal  judges,  251;    citizenship  by, 

276,  279. 
Navigable  waters,  jurisdiction  over,  233. 
Neagle,  In  re,  201,  330. 
Negroes,  protection  of,  by  amendments 

to  constitution,  47 ;  naturalization  of, 

176;  protected  by  fourteenth  amend- 


ment, 282,  349;  guaranty  of  suffrage 

to,  2S5. 
New  Orleans  v,  Stempel,  128. 
Northern    Securities    Co.    v.    United 

States,  162. 
Northwest  Territory,   organization  of, 

266. 

QBLIGATION  OF  CONTRACTS, 

protection  of,  356-362. 

Obscene  publications,  punishment  for, 
302;  exclusion  from  mails,  182,  308. 

Office,  qualifications  for,  287;  right  to, 
287  ;  right  to,  not  property,  360. 

Officers,  impeachrhent,  60;  appoint- 
ment, 202-204  ;  removal,  203. 

Ogden  V.  Saunders,  177,  357. 

Ohio,  etc.  R.  Co.  v.  Wheeler^  238. 

Opinion  of  the  J u slices ,  23. 

Opinions  of  the  judges,  advisory,  23. 

Original  packages  in  commerce,  158 
159. 

Osborn  v.  Bank  of  United  States,  231. 

pACIFIC   RAILROAD    CASES, 

130,  231. 
Pardons,  204,  205. 
Parents,    citizenship    of,    as    affecting 

citizenship  of  children,  279. 
Parliament  of  Great  Britain,  authority 

of,  7,  16. 
Patents,  178-181;  jurisdiction  of  cases 

involving  validity  of,  231,  246. 
Patterson  v.  Kentucky,  180. 
Paul  V.  Virginia,  273. 
Pembina  Mining  Co.  v.  Pennsylvania, 

349- 

Pennoyer  v.  Neff,  351. 

Pennsylvania    College  Cases,  362. 

Peonage,  prohibition  of,  183. 

People,  sovereignty  of,  8-1 1,  17;  au- 
thority of,  to  change  constitutions,  28; 
relations  to  federal  government,  yt^. 

People  y.  Gerke,  217. 

Perry  v.  Keene,  126. 

Petition,  right  of,  310. 

Petition  of  Right  in  Great  Britain,  13. 

Pfeiffer  v.  Board  of  Education,  298. 

Philadelphia,  etc.  Stectmship  Co.  v. 
Pennsylvania,  161. 

Philippines,  government  of,  53 ;  taxation 


28 


434 


Index. 


of  commerce  with,  138;  extension  of 
constitution  to,  267;  citizenship  of 
inhabitants  of,  279. 

Pierce  v.  Drew,  iii. 

Piracy,  punishment  of,  95. 

Places  ceded  to  the  federal  government, 
legislation  as  to,  185. 

Police  power,  belongs  to  states,  38 ;  in 
state  legislature,  82  ;  general  nature 
of,  85-89;  distinguished  from  power 
of  eminent  domain,  104;  as  to  com- 
merce, 152,  157;  as  to  corporations, 
168;  as  to  patented  articles,  180;  to 
be  exercised  without  discrimination, 
272 ;  exercise  of,  as  to  freedom  of 
speech  and  the  press,  302 ;  regulation 
of  right  to  contract,  352;  uniformity 
of  regulations  of,  353 ;  in  regulation  of 
church  privileges,  361. 

Police  regulations,  submission  of,  to 
electors,  1 1 . 

Polygamy,  prohibition  of,  300. 

Political  privileges,  not  incident  to 
citizenship,  175,  271,  276;  how  con- 
ferred 284;  not  guaranteed  in  con- 
stitution, 291. 

Popular  sovereignty,  8-1 1. 

Porto  Rico,  taxation  of  commerce  with, 
138 ;  extension  of  constitution  to, 
267  ;  citizenship  of  inhabitants  of,  279. 

Post-offices  and  post-roads,  181;  ex- 
clusion from  mails  of  obscene  matter, 
lottery  advertisements,  etc.,  308. 

Powers  of  government,  division  of, 
among  departments,  37-39,  55-64; 
federal,  supreme,  43. 

Preamble  of  federal  constitution,  sig- 
nificance of,  33. 

Precedents,  decisions  of  courts  as,  20, 
23,  221,  360. 

Presentment  for  crime  by  indictment, 

317-319. 
President,  extent  of  control  over,  by 
judiciary,  57;  impeachment,  61 ;  elec- 
tion, 75-78;  general  powers,  199; 
administrative  functions,  200-202 ; 
appointing  power,  202-204;  par. 
doning  power,  204,  205 ;  veto  power, 
66,  206-208;  recommendations  as 
to  legislation,  208;  may  call  extra 
sessions  of  Congress,  209;  may  ad- 


journ Congress,  209;  power  as  com- 
mander-in-chief, 210;  protection  of 
states  against  invasion  or  domestic 
violence,  211,  259;  authority  in  diplo- 
macy, treaty-making  power,  213-218 ; 
authority  as  to  aliens,  214  ;  regulation 
of  elections  for,  257;  qualifications 
of  electors  for,  286  ;  power  to  sus- 
pend habeas  corpus,  331. 

Press,  freedom  of,  see  Freedom  of 
speech  and  the  press. 

Privileged  publications,  305. 

Privileges,  of  legislative  members,  69; 
of  state  citizenship,  271 ;  of  United 
States  citizenship,  280. 

Prize  Cases,  191. 

Process  for  witnesses  in  criminal  prose- 
cutions, 326. 

Property,  condemnation  of,  for  public 
use,  103-118;  taxation  of,  127;  guar- 
anties as  to  protection  of,  293 ;  pro- 
tection of,  by  provisions  as  to  due 
process  of  law,  350. 

Prosecutions  for  crime,  guaranties  as 
10,315-332. 

Public  Clearing  House  v.  Coyne,  308. 

Public  ministers,  see  Ambassadors. 

Public  purpose,  taking  of  private  prop- 
erty for,  105-109;  taxation  for,  122- 
127. 

Publications,  freedom  of,  301;  in- 
jurious, prohibited,  303;  concerning 
individuals,  304 ;  privileged,  305-308. 

Punifelly  v.  Green  Bay  Co.,  108. 

Punishment  of  crime,  91-99;  guar- 
anties as  to  proceedings  for,  315-332. 

Punishments,  cruel  and  unusual,  327. 

Quartering  of  soldiers, 
312. 

J^AHRER,  In  re,  159. 

Railroads,  legislative  regulation  of 
rates,  86;  condemnation  of  property 
by,  107;  public  aid  to,  126;  taxation 
oif  franchises  of,  130;  regulation  of, 
as  to  interstate  commerce,  153. 

Railroad  Co.  v.  Fuller,  158. 

Railroad  Co.\,  Husen,  157. 

Railroad  Co.  v.  National  Bank,  253. 

Railroad  Co.  v.  Olloe,  126. 


Index, 


435 


Rapier,  In  re,  182,  308. 

Rates  of  transportation,  regulation  of, 
162. 

Ratification  of  federal  constitution  by 
states,  32. 

Rebellion,  effect  of,  as  to  state  govern- 
ments, 260. 

Reconstruction  of  states,  260,  263. 

Referendum,  9-1 1,  62. 

Reg  gel  ^  Ex  parte,  270. 

Religion,  exemptions  for  benefit  of,  127  ; 
establishment  of,  prohibited,  295; 
freedom  of,  guaranteed,  295-311 ;  as- 
sembly for  purposes  of,  309. 

Religious  belief  no  defence  for  crime, 
300. 

Removal  of  cases  from  state  to  federal 
courts,  241. 

Removal  of  officers,  203. 

Reorganization  of  seceded  states,  263. 

Representation,  in  England,  7 ;  in  the 
colonies,  26;  in  legislatures,  67;  and 
taxation,  139. 

Representatives  in  Congress,  qualifica- 
tions and  election  of,  67-69. 

Reprieves,  205. 

Republican  form  of  government,  nature 
of,  10;  guaranty  of,  211,  258. 

Reputation,  injuries  to,  302-308. 

Residence,  as  affecting  state  citizenship, 
276,  280 ;  as  affecting  right  to  vote, 
285. 

Retroactive  laws,  impairing  obligation 
of  contracts,  357;  as  affecting  vested 
rights,  364. 

Revenue,  bills  for  raising,  122;  from 
direct  taxes,  140. 

Revolution,  when  justifiable,  9,  18. 

Revolutions,  in  government,  5 ;  in  state 
governments,  258. 

Revolutionary  changes  in  federal  con- 
stitution, 28,  32;  in  state  constitu- 
tions, 34. 

Reyiiolds  v.  United  States,  300. 

Rhodes  v.  lozva,  159. 

Rice  v.  Foster,  62. 

Riggs  V.  Johnson  County,  254. 

Rights  of  person  and  property,  limita- 
tions for  protection  of,  4=;-53. 

Riotous  assemblies,  prohibition  of,  311. 

Roach  V.  Va7t  Riswick,  184. 


Rabbins    v.   Shelby    County    Taxing 

District,  155. 
Rodriguez,  In  re,  176. 

Cr.    LOUIS,    ETC.    R.    CO.    v. 

JAMES,  238. 
Salt  Co.  V.  East  Saginaw,  360. 
Sands  v.  Ministee  River  Improvement 

Co.,  263. 
Savings  Society  v.  Multnomah  County^ 

129. 
Schools,  religion  in,  297. 
Searches  and  seizures,  313,  314. 
Search  warrants,  314. 
Seas,  see  High  seas. 
Self-crimination,  320. 
Self-government,  6,  169. 
Senate,   powers  of,  as  to  removal  and 

appointment  of  officers,  203;   power 

of,  as  to  treaties,  215. 
Senators  in  Congress,  qualifications  and 

election  of,  67-69. 
Siebold,  Ex  parte,  287. 
Slander,   what  constitutes,  302;   defa- 
mation of  individuals,  304 ;  privilege, 

305-308. 
Slaughterhouse  Cases,  281. 
Slavery,  prohibition  of,  53,  183;  effect 

of    abolition   of,    on    taxation,   141 ; 

fugitive  slave  laws,  270. 
Smith  V.  Alabama,  253. 
Social  compact,  theory  of,  291. 
South  Dakota  v.  North  Carolina,  236. 
Sovereign  cannot  be  sued,  234,  236. 
Sovereignty,  popular,  8-1 1;    ultimate, 

16-18;    of   the    states,   29,   256;    of 

states     under     confederation,      30; 

divided,  37 ;  reservation  of,  to  people, 

40,  41. 
Speech,   freedom   of,   see    Freedom  of 

speech. 
Standing    armies,    in   time    of   peace, 

312. 
State  V.  Barker,  60. 
State  V.  District  Board,  298. 
State  V.  Stone,  56. 
State  tax  on  foreign-held  bonds,  129. 
States,  independence  of,  29 ;  sovereignty 

of,  under  confederation,  30;  union  of, 

under  confederation,  30  ;  adoption  of 

federal  constitution  by,  32,  34 ;  limi- 


436 


Index, 


tations  on,  in  federal  constitution,  44 ; 
relations  to  each  other,  45,  188,  26S- 
271 ;  police  power  of,  85-89 ;  power 
of,  as  to  crimes,  91  ;  treason  against, 
94;  taxing  powers  of,  122;  taxation 
of  agencies  of,  130;  limitations  on 
taxing  power  of,  133;  methods  of 
taxation  by,  134  ;  financial  powers  of, 
143;  power  of,  to  charter  banks,  144; 
cannot  tax  federal  currency,  147; 
power  of,  as  to  Corporations,  167- 
171;  citizenship  in,  175,  275  ;  power 
of,  as  to  bankruptcy,  177;  powers  of, 
as  to  patents,  179;  cession  of  terri- 
tory to  the  United  States  by,  185  ; 
powers  of,  as  to  war,  187  ;  militia  of, 
188;  president  to  protect  against  in- 
vasion or  domestic  violence,  211, 
259;  cannot  make  treaties,  213-218; 
judiciary  of,  222 ;  jurisdiction  as  to 
suits  by  or  against,  225,  235,  236, 
249;  controversies  between,  as  to 
boundaries,  225,  235  ;  jurisdiction  as 
to  land  grants  of,  238 ;  jurisdiction  of 
cases  by  or  against,  249  ;  appeals  from 
courts  of,  to  federal  supreme  court, 
249;  law  of,  recognized  in  federal 
courts,  252;  guaranty  of  republican 
government  to,  258 ;  guaranty  against 
invasion  or  domestic  violence,  259; 
reconstruction,  260 ;  admission,  262- 
264  ;  change  of  boundaries,  263 ;  inter- 
state comity,  268;  extradition  of 
criminals,  269;  privileges  of  citizens, 
271 ;  faith  and  credit  to  acts  and  pro- 
ceedings, 273  ;  first  eight  amendments 
of  constitution  not  applicable  to,  282; 
power  of,  limited  by  fourteenth 
amendment,  345  ;  controlled  by  four- 
teenth amendment  as  to  equal  pro- 
tection, 352  ;  cannot  impair  obligation 
of  contracts,  356. 
Statutes,  unconstitutionality  of,  18-25  ; 
methods  of  enacting,  71;  approval 
of,  by  executive,  206-208;  effect 
upon  treaties,  216-218;  of  United 
States,  jurisdiction  of  cases  arising 
under,  230;  judiciary  may  pass  upon 
constitutionality,  255  ;  of  states,  how 
proven,  273 ;  uniformity  of  applica- 
tion of,  353. 


Statutory  exemptions  not  contracts,  360- 

Sleamboat  Magnolia^  The,  234. 

Stone  v.  Mississippi,  361. 

Story  V,  New  York  Elevated  R.  Co., 
117. 

Streets,  use  of,  no;  condemnation  of 
land  for,  no. 

Sturgcs  v,  Crowninskield,  177,  357. 

Suffrage,  denial  of  right,  prohibited,  53  ; 
how  conferred,  284-287. 

Sunday  laws,  299. 

Supervisors  of  Elections,  Case  of,  60. 

Supremacy  of  federal  government,  43. 

Supreme  court,  federal,  power  of,  to  de- 
clare statutes  unconstitutional,  24- 
final  interpreter  of  constitution,  44 ; 
juiisdiction  of,  226,  242,  248-250; 
appeals  to,  in  cases  of  construction  of 
federal  constitution,  242;  justices  of, 
assigned  to  circuits,  245 ;  organiza- 
tion of,  248. 

fARBLE'S  CASE,  330. 

Tariff  laws,  authority  for,  88 ; 
power  of  Congress  to  pass,  126 ;  as 
to  commerce  with  insular  possessions, 
138. 

Taxation,  control  of,  by  judiciary,  22 ; 
distinguished  from  power  of  eminent 
domain,  104;  general  powers,  120- 
122  ;  state  power,  122-124  ;  for  public 
purpose,  124-127;  what  property, 
127-129;  due  process  of  law  as  to, 
131-133;  limitations  on,  133,  134; 
methods,  134,  135  ;  federal,  135-142  ; 
direct,  139-142  ;  on  commerce,  160  ; 
for  support  of  religion,  297;  exemp- 
tion of  church  property  from,  298 ; 
exemptions  from,  repealable,  360 ; 
corporate,  exemptions  from,  362. 

Taxes,  power  of  states  to  impose,  40 ; 
special,  123,  132;  direct,  139-142; 
income,  141;  on  capital  of  foreign 
corporations,  161. 

Taxing  power  in  state  legislature,  82. 

Telegraph  Co.  v.  Texas,  161. 

Territories,  constitutional  limitations, 
applicable  to,  52,  266;  delegates  from, 
in  Congress,  69 ;  appeals  from  courts 
of,  250;  admission  of,  as  states,  2645 
government  of,  265-267;  federal  con- 


Index. 


437 


stitution  in,  266 ;  citizenship  of  in- 
habitants of,  279. 

Test  oath  as  to  quaUfication  for  office, 
205. 

Texas  v.  White,  257. 

Thirteenth  amendment,  application  of, 
53,  270;  abolishing  slavery  and  peon- 
age, 183. 

Titles  of  nobility  not  to  be  granted,  259. 

Toleration,  religious,  296. 

Trade  Mark  Cases,  181. 

Trademarks,  181. 

Transfer  of  cases  from  state  to  federal 
courts,  241. 

Treason,  92-94. 

Treaties,  states  cannot  make,  187  ;  ju- 
risdiction of  cases  arising  under,  230; 
authority  to  make,  213;  execution  of, 
215;  limitations  of  powers  as  to, 
216;  as  affected  by  legislation,  216- 
218;  citizenship  conferred  by,  280. 

Trebilcock  v.  Wilson,  146. 

Trial  by  jury,  see  Jury  trial. 

Trial  in  criminal  prosecutions,  speedy 
and  public,  322. 

Troops,  quartering  of,  312. 

Trusts,  affecting  interstate  commerce^ 
160,  162;  jurisdiction  of  cases  under 
statutes  against,  246. 

Twining  v.  New  Jersey,  5 1 . 

UNCONSTITUTIONALITY 

OF  ACTS,  18-25,  201,  255. 

Uniformity,  taxation,  132,  138;  in  ap- 
plication of  laws,  352;  of  police  reg- 
ulations, 353. 

Union,  under  confederation,  30.  See 
Government,  federal. 

United  States,  jurisdiction  of  cases  by 
or  against,  225,  234,  245,  246;  citizen- 
ship in,  by  birth,  277  ;  by  naturali- 
zation, 279 ;  privileges  of,  280.  See 
Government,  federal. 

United  States  bank,  taxation  of,  130; 
creation  of,  by  Congress,  145,  170. 

United  States  v.  E.  C.  Knight  Co., 
160,  162,  171. 

United  States  v.  Gettysburg  Electric 
R.  Co.,  III. 

United  States  v.  Greathouse,  94. 

United  States  v.  Hall  id  ay,  162. 


United  States  v.  Lee,  235. 
United  States  v.  Marigold,  94. 
United  States  v.  Rio  Grande  Dam  &* 

Irrigation  Co.,  162. 
United  States  v.  Rodgers,  96. 
United  States  v.  Smith,  95. 
United  States  v.  Stattdard  Oil  Co,  162. 
United  States  v,  Williams,  215. 
United  States  v.  Wong Kitn  Ark,  277. 
Unwritten  constitutions,  11-16. 
Unwritten  law,  administered  in  courts, 

223. 
Usages,  constitutional,  in  Great  Britain, 

12  ;  in  United  States,  15. 

yEAZIE  BANKv.  FENNO,  133, 

145. 
Venue,  in  criminal  prosecutions,  322. 
Verdict  of  jury,  336.     See  Jury  trial. 
Vested   rights,    protection    of,    against 

legislative  encroachment,  363-365. 
Veto,  executive,  66,  206-208. 
Vice-president,  election  of,  76;  duties 

of,  78,  202. 
Vicksbtirg,  etc.  R.  Co.  v.  Putnam,  336. 
Voters,  rights  of,  whence  derived,  284- 

288. 

U/ ABASH,  ETC.  R.  CO.  v.  ILLI- 

NO  IS,  158. 
Waiver    of    constitutional    guaranties, 

331 ;  of  jury  trial,  340. 
Wall,  Ex  parte,  347. 
War,  levying  of,  constituting   treason, 

93;  powers  as  to,  187-193;  power  to 

declare,  190. 
Ward\.  Maryland,  272,  281. 
Warrants  for  searches  and  arrests,  313, 

314,  316. 
Weights  andmeasures,regulationof,  181. 
Welton  V.  Missouri,  155. 
Western  Utiion  Telegraph  Co.  v.  Call 

Pub.  Co.,  254. 
Western  Union  Tel.  Co.  v.  Kansas,  161. 
Whitten  v.   Tomlinson,  330. 
Wiley  V.  Sinkler,  286. 
Williamson  v.  United  States,  70. 
Wisconsin    Central  R.    Co.   v.   Price 

County,  129. 
Witnesses,  religious  opinions  as  affect- 
ing competency,  296 ;    not  required 


438 


Index 


to  criminate  themselves,  320,  321 ; 
right  to  be  confronted  by,  in  criminal 
prosecutions,  324  ;  process  for,  326. 

Woodruffs,  Trapnall^  357. 

Worship,  freedom  of,  295-299. 


Written  constitutions,  11-16. 
Wurtz  V.  Hoaglufid,  126. 

y^ARBOROUGH,  Ex  parte,  286. 
Yick  Wo  V.  Hopkins,  349,  354. 


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